|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: May 10, 2001
RE: Moral Turpitude
You have the following questions:
1. Is DUI an offense involving moral turpitude?
No. See Flowers v. Benton County, 302 S.W.2d 335 (1957).
Also see OAG Opinions 82-65, 77-253, 77-36A, 95-069, 95-037, 98-225, 08-108, and 09-41 for various lists of offenses that involve, and offenses that do not involve, moral turpitude. As those opinions, and the cases that support them point out, no exhaustive list of offenses involving moral turpitude can be made because the courts have trouble trying to decide which offenses qualify.
2. Is passing a bad check an offense involving moral turpitude?
It probably depends on the circumstances.
I have found one case in the United States in which it is declared that passing worthless checks is an offense involving moral turpitude. [Burr v. Immigration & Naturalization Service, 350 F.2d 87 (1965) (which was also cited with approval in U.S. v. Smith, 420 F.2d 428 (1970))]. In Burr, an alien passed a bad check in California, and the Ninth U.S. Circuit Court of Appeals held him subject to deportation on the ground that he had committed a crime involving moral turpitude. It reasoned that:
Petitioner likewise urges that he was not convicted of a crime involving moral turpitude. The cases hold he was. Crimes in which fraud is an ingredient have always been regarded as involving moral turpitude. [Citations omitted.]... An intent to defraud is an essential element of California Penal Code ' 476a, both by the specific language it uses and by the cases interpreting it. [Citations omitted.] [At 91-92]
However, the U.S. Sixth Circuit Court of Appeals (which covers Tennessee) in U.S. v. Barb, 20 F.3d 694 (1994), spoke at length on the question of whether the crime of writing worthless checks in Tennessee was a crime that as a matter of law involved dishonesty. There Ms. Barb, convicted of aiding and abetting wire fraud, objected to the government’s use of her three prior misdemeanors for writing worthless checks in Tennessee She argued that the Tennessee worthless check statute was not a per se crime of dishonesty. Siding with Ms. Barb, the Court declared that:
In State v. Goad, 707 S.W.2d 846, 851 (1986), the Tennessee Supreme Court affirmed a trial court’s exclusion of a bad check conviction. The court stated that “[n]o actual records of this incident were introduced, and the trial court judge concluded that the proof concerning the prior incident was neither sufficiently clear nor relevant to the credibility of the witness to justify its admission.” The Court of Appeals, in a 1992 unpublished opinion, relied on Goad when it found that passing worthless checks is not always a crime involving dishonesty or false statement. Barbee v. Dixon, 1992 WL 296739 (Tenn. App. 1992). In Barbee, the trial court allowed the admission of evidence of a witness’s Tennessee misdemeanor conviction for passing a worthless check. The court of appeals ruled the admission error, clearly acknowledging that such a conviction is not per se a crime of dishonesty: “We have stated that the basis for the prior misdemeanor bad check conviction may have involved dishonesty and that such a finding [is] within the trial judge’s discretion.” Barbee, 1992 WL 29639, at * 9. [At 696]
Barbee itself involved the credibility of a witness, when it became clear that in a deposition he had not disclosed that he had a prior conviction for writing a worthless check. On that point, the Tennessee Court of Appeals declared that:
To attack the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the crime involves dishonesty or false statement, unless its probative value is substantially outweighed by the danger of unfair prejudice or other criteria listed in the Tennessee Rules of Evidence 403. Tenn. R. Evid. 609(a)(2) and Advisory Commission Comments....A crime may involve dishonesty or false statement if the crime expresses “the design and determination to violate the law” [Citation omitted], or an element of the particular offense involves dishonesty or is indicative of dishonesty. State v. Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App. 1995). In State v. Goad, 707 S.W.2d 846, 851 (Tenn. 1986), the Tennessee Supreme Court affirmed a ruling of the trial court excluding under 609(a) bad checks involving nominal amounts which were issued five to six years prior to the trial. Apparently, the entire charges were disposed of by the payment of a $17.50 fine. The Court said that the proof concerning the prior offense was neither sufficiently clear nor relevant to the credibility of the witness so as to justify the admission....In this case there was sufficient proof of the prior check conviction. The trial judge inquired into the basis of the conviction from which he could have discovered a design and determination to violate the law. This finding was within his discretion. The trial judge concluded that the probative value of the misdemeanor was not substantially outweighed by its prejudicial effect because Steve Barbee had stated in his deposition that he had never been convicted of a crime. We believe this ruling was in error on the part of the trial court. The prior conviction occurred more than eight years prior to the trial and there is no evidence that Steve Barbee has subsequently been convicted of any criminal offense...
Arguably, the question of whether a conviction for passing a worthless check is a conviction of a crime involving moral turpitude for the purposes of an application for a beer permit, is different from the question of whether records of prior convictions for passing worthless checks should be admitted in a trial for various purposes. But by focusing on the necessity that the conviction for passing a worthless check actually reflect dishonesty before it can be used in a trial, Barb is probably instructive on the question of whether such a conviction involves moral turpitude in any context. That case points to the argument the government made in support of the proposition that the offense of writing worthless checks should as a matter of law count as a crime involving dishonesty:
The government cites State v. Denami, 594 S.W.2d 747 (Tenn. Crim. App. 1979), for the assertion that the gravamen of the Tennessee statute is fraudulent intent; that the issuer of the check is always implicitly making a false representation that there are sufficient funds for payment of the check. We do not find Denami persuasive. Denami was a direct appeal of a criminal conviction under a former version of Tennessee’s worthless check statute. Tenn. Code Ann. ' 39-1959. The defendant argued that the government had not sufficiently proven fraudulent intent because it had not shown that there were insufficient funds to pay the checks at the time the checks were written. The court found, after a review of the evidence presented to the jury, that there was “overwhelming evidence that the checks were delivered with fraudulent intent;” that the defendant knew that he had no money in his account and was attempting to defraud the bank though presentation of three $15,500 checks to different branches of the bank within hours of each other. The evidence showed that he was able to obtain money from the checks despite having no money in his account because of his extensive knowledge and manipulation of the bank’s computer system. Denami, 594 S.W.2d at 750....It is clear from the facts of Denami that the defendant was attempting to defraud his bank. Further, the statute in Denami, unlike the statute under which Barb was convicted, required as an element, fraudulent intent. Not only was fraudulent intent not required to convict Barb, but there was no evidence in the record regarding the factual circumstances surrounding the conviction of defendant’s knowledge of intent when she wrote the worthless checks. In sum, no evidence establishes fraudulent intent or false statement...Under Goad, Barbee and Denami, we find that the district court erred when it admitted the bad check conviction on the basis of the mistaken view that as a matter of law conviction under Tennessee’s worthless check statute are crimes of dishonesty. While it is clear that a conviction for worthless checks may qualify for admission under Rule 609(a)(2), it is equally clear that the statute criminalizes simply writing a check “knowing at the time there are not sufficient funds....” Such a conviction is not, as a matter of law, a conviction involving dishonesty and adds nothing to the factfinder’s ability to judge the credibility or propensity for truthfulness of a witness, the purpose of Rule 609(a)(2)...[At 696]
It seems to me that both the federal and state courts in the above cases are saying that the passing of a worthless check is not on its face a crime involving moral turpitude for any purpose, and that the facts of the passing of the check require additional inquiry. Fairly recent changes to Tennessee’s worthless check statute also indicate that the timing of the conviction in a particular case might make a difference. [See Tennessee Code Annotated, '' 39-14-121 et seq. and 40-3-201]
Obviously, dishonest intent is the standard by which the question of whether a conviction for the crime of writing of a worthless check is a crime involving moral turpitude, the beer board must look at the criminal record of the applicant in each particular conviction for the purpose of divining whether the applicant had the intent to defraud. That is generally a tall order for a beer board. It may be a better course for the beer board to make its determination on the face of the record, and let an unhappy applicant appeal its decision.