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01/21/92 WILLARD C. MCBRIDE RESPONDENT. A MEMBER

January 21, 1992

IN RE WILLARD C. MCBRIDE, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Before Rogers, Chief Judge, and Ferren, Terry, Steadman, Schwelb, Farrell, and Wagner, Associate Judges, and Belson,* Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: In this disciplinary case, we revisit three of our decisions -- In re Willcher, 447 A.2d 1198 (D.C. 1982); In re Kerr, 424 A.2d 94 (D.C. 1980) (en banc); and In re Colson, 412 A.2d 1160 (D.C. 1979) (en banc) -- to review our prior holdings that (1) all crimes with a statutory element of "intent to defraud" are crimes involving moral turpitude per se, and (2) D.C. Code § 11-2503 (a) (1989) requires disbarrment for life upon conviction of a crime involving moral turpitude.

On August 31, 1988, respondent Willard C. McBride pleaded guilty in federal court to the misdemeanor of aiding and abetting a client, Mrs. Shahid, in violating 18 U.S.C. §§ 1028 (a)(4) and (b)(3) (the knowing possession of false identification document with intent to use document "to defraud the United States"). *fn1 McBride, a member of the District of Columbia Bar since 1954 and a 28-year honored veteran of the Department of Justice, had retired in 1983 to become a solo practitioner. According to McBride's brief, his practice consisted of many pro bono referrals from his church, including a request that he help Mrs. Shahid and her two young children, immigrants from Pakistan, change their immigration status from visitor to resident alien. With McBride's assistance, Mrs. Shahid's petition to change her immigration status was conditionally granted. But as she made preparations to fly to Pakistan to appear personally at the United States Consulate there, she grew fearful that some snag in the process would prevent her from returning to the United States and would require her to stay in Pakistan where her physically abusive ex-husband resides. She panicked and pleaded with McBride to help her obtain an American passport to use to re-enter the United States in case her new immigration status was not approved. McBride helped Mrs. Shahid provide the passport office with two identification documents that belonged to a third person. McBride accompanied her to that office and remained with her as she applied for and picked up the passport. McBride received no financial or any other benefit from his actions, all of which occurred within four days. On the other hand, he has never disputed that he knew his conduct was dishonest and designed to secure for Mrs. Shahid a passport to which she was not entitled.

On November 2, 1988 a federal magistrate, after noting that McBride's acts were "aberrational" and that he had "let his heart carry his head," sentenced McBride to one year of probation, imposed a fine of $25 plus the estimated $1,000 cost of probation, and ordered "100 hours of community service, preferably in the legal community."

On March 7, 1989, this court issued an order suspending McBride from the practice of law because he had been convicted of a "serious crime" within the meaning of D.C. Bar R. XI § 10 (b). *fn2 We also directed the Board on Professional Responsibility to initiate formal proceedings to determine the proper sanction and specifically "to review the elements of the crime . . . for the purpose of determining whether or not the crime involves moral turpitude within the meaning of D.C. Code § 11-2503 (a)." *fn3

On July 28, 1989 the Board issued its report, concluding that 18 U.S.C. § 1028 (a)(4) was a crime involving moral turpitude per se and recommending that McBride be disbarred for life pursuant to D.C. Code § 11-2503 (a), (supra) note 3; see Kerr, 424 A.2d at 99. A division of this court accepted the Board's analysis and ordered McBride permanently disbarred on July 18, 1990. See In re McBride, 578 A.2d 1102, 1103 (D.C. 1990). We granted McBride's petition for rehearing en banc in order to address several issues that continue to cause concern among lawyers, Judges, and the public at large.

We now remand to the Board for further proceedings. We conclude, after reviewing the disciplinary history under Colson, that no conviction of a misdemeanor may be deemed a conviction of a crime involving moral turpitude per se, even though that misdemeanor may be properly characterized as a "serious crime," see supra note 2, and may be held to involve moral turpitude on the facts of the case. We also overrule Kerr, concluding that D.C. Code § 11-2503(a) no longer shall be construed to require disbarrment of an attorney for life upon conviction of a crime involving moral turpitude.

I.

D.C. Code § 11-2503 (a) (1989) requires disbarrment of any attorney convicted of a crime involving moral turpitude. In Colson, we announced procedures the Board on professional Responsibility should follow in determining whether a crime involves moral turpitude. We required, as a first step, that the Board examine the underlying elements of the offense with a view to determining whether the statute, on its face, involves moral turpitude or instead may involve moral turpitude, if at all, only in certain instances. See Colson, 412 A.2d at 1164-65; see Board Rules 10.1 and 10.2. In the latter case, the attorney was held to be entitled to a full evidentiary hearing to explore whether the criminal conduct itself (as opposed to conviction for violating the criminal statute as such) involved moral turpitude. See Colson, 412 A.2d at 1165. *fn4 But a hearing was not required, or even permitted, when a statute on its face involved moral turpitude -- commonly referred to as moral turpitude per se -- because a guilty plea or guilty verdict was taken as conclusive evidence of all the underlying elements of the offense. See id. at 1164.

We applied Colson's analysis in Willcher, where we held that any crime having "intent to defraud" as an essential element would be a crime involving moral turpitude per se. See Willcher, 447 A.2d at 1200. *fn5 In the present case, the Board, as well as McBride, notes that Colson and Willcher have resulted in "widely disparate treatment of attorneys whose misconduct is within the range of comparability." REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY, IN THE MATTER OF WILLARD C. MCBRIDE (July 28, 1989) at 22 (reprinted at 578 A.2d 1102 (D.C. 1990) (hereafter BOARD REPORT). *fn6 McBride argues that such application of Colson/Willcher contravenes D.C. Bar Rule XI § 9 (g), *fn7 which requires comparable sanctions for comparable misconduct.

More specifically, McBride questions the application of Willcher's "intent to defraud" rule to this case. He argues that a violation of 18 U.S.C. § 1028 (a)(4) -- despite referring to an "intent to defraud" -- does not inherently involve moral turpitude because (1) the Board must, but did not, examine the entire statute, not an isolated subsection, before finding moral turpitude, and, in any event, (2) an exclusive focus on the "intent to defraud" language of a statute sweeps too broadly by mandating disbarrment upon conviction under many statutes, such as 18 U.S.C. § 1028 (a)(4), that do not manifestly involve moral turpitude because "defraud" has a different meaning from its common law meaning used in Willcher.

A.

In analyzing McBride's case under Colson/Willcher, the Board examined the statutory elements of 18 U.S.C. §§ 2 and 1028 (a)(4) to determine whether his crime was among those that inherently involve moral turpitude. The Board first concluded that under 18 U.S.C. § 2 *fn8 McBride had been "the party who aids or abets the offense [and therefore] 'is guilty under the statute as a principal." BOARD REPORT at 11 (quoting United States v. Raper, 219 App. D.C. 243, 251, 676 F.2d 841, 849 (1982)). According to the Board, under federal caselaw a conviction for aiding and abetting a crime means that the aider and abettor was found to have had the specific intent to facilitate the commission of a crime by another, BOARD REPORT at 12-13, and that every element of the underlying offense allegedly committed by the other person was established. See id. at 13 (quoting Raper, 219 U.S. App. D.C. at 251, 676 F.2d at 849). *fn9

The Board then examined the elements of 18 U.S.C. § 1024 (a)(4) and concluded that Mrs. Shahid knowingly possessed either a counterfeit or false identification document and thus "intended to defraud the United States." Because McBride's conviction indicated that he had "guilty knowledge" of Mrs. Shahid's criminal venture and had the specific intent to facilitate her commission of a crime involving "intent to defraud the United States," McBride's conviction was for a crime which involved a "knowing intent to defraud." BOARD REPORT at 16. Under the controlling precedent of Willcher, therefore, the Board concluded that McBride had been convicted of a crime involving moral turpitude per se. Id.

McBride argues that the Board's ruling demonstrates the shortcomings of a Willcher-type analysis -- an analysis which, in practice, compels a mechanical search through the wording of a statute for the telltale phrase "intent to defraud." The hazards of this approach, he says, are clearly revealed in cases such as this where the only subsection of the statute that contains the words "intent to defraud" -- subsection (a)(4), see (supra) note 1 -- is also the least serious of the offenses spelled out in the statute. The harshest maximum penalties under § 1028 -- five-years and three-years of imprisonment, respectively -- are reserved for defendants engaged in the business of manufacturing, 18 U.S.C. § 1028 (a)(1), obtaining in bulk, id. § 1028 (a)(3), or trafficking in false or bogus documents, id. § 1028 (a)(2). See (supra) note 1. Because, however, none of these subsections requires proof of an "intent to defraud," a conviction under any of them would escape the Willcher rule and would not result in summary disbarrment without a hearing into the conduct that led to the conviction. McBride concludes that, ironically and unfairly, only a conviction under § 1028 (a)(4) -- a misdemeanor possession offense which, according to the HOUSE REPORT, "ought not to be treated as seriously as counterfeiting and trafficking offenses" *fn10 -- can result in summary disbarrment under Willcher.

McBride is not altogether correct. Although Willcher does say that conviction under a statute with an "intent to defraud" element involves moral turpitude per se, this does not mean that conviction under a statute without these words cannot inherently involve moral turpitude. *fn11 Neither Willcher nor any other case in this jurisdiction forecloses an analysis that would bring the felony provisions of § 1028 (a) into the per se moral turpitude category (an issue we do not decide); crimes can involve moral turpitude per se without involving an intent to defraud. See, e.g., In re Laurins, 576 A.2d 1351, 1352 (D.C. 1990) (conviction for obstruction of Justice in administrative proceedings); In re Meisnere, 471 A.2d 269, 270 (D.C. 1984) (conviction for perjury); In re Phillips, 452 A.2d 345, 346 (D.C. 1982) (conviction for rape and sodomy); In re Roberson, 429 A.2d 530, 531 (D.C. 1981) (convictions for conspiracy to sell narcotic drugs and to receive and conceal narcotic drugs).

On the other hand, if proper analysis were to demonstrate, as McBride contends, that the provisions of § 1028 (a) which Congress intended as the most serious crimes do not involve moral turpitude per se, we agree that this obvious anomaly, as it affects lawyer discipline, would present serious questions of fairness, if not due process. A lawyer convicted of the lesser offense would be automatically disbarred, without regard to facts or mitigating circumstances, whereas a lawyer convicted of the greater offense would have a chance, after a hearing, to avoid that consequence.

We have never before confronted for disciplinary purposes a criminal statute in which several subsections spell out different, related crimes but only one includes an "intent to defraud." See In re Rosenbleet, 592 A.2d 1036, 1037 (D.C. 1991) (specific intent to defraud required for conviction under federal bank fraud statute, 18 U.S.C. § 1344, and for conviction under local second-degree fraud statute, D.C. Code § 22-3821 (b)); In re Vaccaro, 539 A.2d 1094, 1095 (D.C. 1988) (specific intent to defraud required for conviction under federal National Stolen Property Act, 18 U.S.C § 2314); In re Bond, 519 A.2d 165, 166 (D.C. 1986) (specific intent to defraud required under federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343); In re Anderson, 474 A.2d 145, 146 (D.C. 1984) (specific intent to defraud required for conviction under local false pretenses statute, D.C. Code § 22-1301 (a)); In re Willcher, 447 A.2d at 1200 (specific intent to defraud required for conviction under unlawful solicitation of money from indigent client statute, D.C. Code § 11-2606 (b)). Accordingly, where only one of several related crimes in the statute -- indeed, only the least serious of these crimes -- involves an "intent to defraud," we believe there is a difficult, but significant, unresolved question whether the lesser crime can inherently involve moral turpitude unless all the specified crimes also inherently involve moral turpitude (whether involving an intent to defraud or not). It may be that, on proper analysis of a presentation (not now before us) addressing the felony provisions of § 1028 (a), we would conclude that they do inherently involve moral turpitude. But we need not answer such questions because of our Conclusion that another analysis is dispositive here.

B.

We have discovered that, with the exception of Willcher and this case, all "intent to defraud" adjudications in our disciplinary system have involved felonies. We recognize that misdemeanors can be "serious crimes" warranting immediate suspension pending resolution of a disciplinary proceeding *fn12 and that, theoretically, misdemeanors can involve moral turpitude. But we no longer see any justification for believing a misdemeanor -- even one with an "intent to defraud" -- can involve moral turpitude per se.

Our first reason for adopting this felony-misdemeanor distinction inheres in the concept of moral turpitude itself. We said in Colson: "If a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind." 412 A.2d at 1168. *fn13 Thus, the idea of moral turpitude incorporates a revulsion of society toward conduct deeply offending the general moral sense of right and wrong. But if society, through its elected representatives in the legislature, has determined that particular conduct, though criminal, is not serious enough to warrant punishment beyond the misdemeanor range, we believe it is inconsistent with that judgment to hold that a statute punishing that conduct may nonetheless reflect a crime involving moral turpitude per se, i.e., in every application, without regard to the circumstances.

The second reason why we now exclude misdemeanors from the reach of Colson's per se analysis lies in our own disciplinary history after Colson. In the twelve years since that decision, only in one case -- Willcher, see supra note 5, -- has a misdemeanor served to justify mandatory disbarrment for a crime involving moral turpitude, let alone moral turpitude per se. In all others it has not. See, e.g., Hutchinson, 534 A.2d at 922-923 (misdemeanor conviction of statute and regulation prohibiting communication of nonpublic information relating to tender offer did not involve moral turpitude); In re Kent, 467 A.2d 982 (misdemeanor conviction for taking property without right did not involve moral turpitude); In re Lovendusky, No. 84-1672 (D.C. 1986) (misdemeanor conviction of attempted carnal knowledge of fourteen-year-old did not involve moral turpitude per se or on facts) (unpublished). Given our experience that misdemeanors, while sometimes "serious crimes," generally do not involve moral turpitude, we now conclude that the risk of permitting misdemeanors to justify automatic disbarment, without a hearing, is too great.

Finally, the crime for which McBride was convicted, 18 U.S.C. § 1028 (a)(4), itself illustrates why conviction of this misdemeanor does not justify automatic disbarment. As McBride points out, the "intent to defraud" expressly made an element of this offense was intended to reach conduct well beyond the common law understanding of fraud used in Willcher and later cases. We have never defined "intent to defraud" for lawyer disciplinary purposes, but our disciplinary caselaw to date has concerned convictions for crimes in which the "intent to defraud" has reflected the common law definition: an intent to obtain property by a false or fraudulent pretense, representation, or promise. See Blackledge v. United States, 447 A.2d 46, 49 (D.C. 1982); R. PERKINS & R. BOYCE, , at 363 (3d ed.1982); Goldstein, Conspiracy to Defraud the United States, 68 YALE L.J. 405, 420 & n.23 (1959). *fn14

In contrast, § 1028 (a)(4) reflects a broader definition of fraud explained by the Supreme Court years ago in Hammerschmidt v. United States, 265 U.S. 182, 68 L. Ed. 968, 44 S. Ct. 511 (1924), in describing the conduct punished by the predecessor of 18 U.S.C. § 371 (conspiracy to defraud the United States):

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental function.

Id. at 188 (emphasis added); see also Glasser v. United States, 315 U.S. 60, 66, 86 L. Ed. 680, 62 S. Ct. 457 (1942) (depriving United States "of its lawful governmental functions by dishonest means . . . is a 'defrauding' within the meaning of [predecessor statute of 18 U.S.C. § 371]").

That 18 U.S.C. § 1028 (a)(4) was intended to encompass this broader concept of intent to defraud is made clear in the HOUSE REPORT accompanying enactment of § 1028 (a):

The fourth offense created is the knowing possession of an identification document (other than one issued lawfully for the use of this possessor) or a false identification document, with the intent such document be used to defraud the United States. . . . The Committee intends that possession with the intent to commit any offense that would be subsumed under the term "defraud the United States" would be covered. It is the view of the Committee that the intent to defraud the United States in this content is an intent to use the identification document to commit an offense against the United States, for example, an offense under 18 U.S.C. 1001 [knowing false statement to governmental agency]. [ *fn15] The term "defraud the United States", is not simply a misrepresentation as the term "fraud" is often defined in recent legislative proposals, e.g., (H. REPORT 96-1396, 14, 141-43, [ *fn16] but would include use of false identification to obstruct functions of the government. [Footnotes omitted].

HOUSE REPORT at 11, 1982 U.S. CODE CONG. & ADMIN. NEWS at 3529 (citations omitted) (emphasis added). We do not deprecate the seriousness of this concept of fraud *fn17 when we point out that potentially, at least in marginal applications, it could embrace deceitful conduct bearing only an attenuated relationship to common law fraud aimed at personal gain. *fn18 The very expansiveness of the definition of fraud under ยง 1028 (a)(4) may explain why Congress saw fit to classify the crime as a misdemeanor. ...


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