FLORIDA REAL ESTATE COMMISSION ) ex. rel. CHARLES F. BORER )
vs. ) CASE NO. 76-458
) P.D. 2761
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on March 26, 1976 at Ft. Lauderdale, Florida.
For Petitioner: Manuel E. Oliver, Esquire,
For Respondent: Irving H. Zuckerman, Esquire,
By Administrative Complaint filed December 4, 1975, the Florida Real Estate Commission ex rel. Charles F. Borer, seeks to suspend or otherwise discipline the license of Seymour Astern upon the allegation that licensee has been guilty of a crime involving moral turpitude in violation of 475.25(1)(e) F.S. Two exhibits containing information and judgement of court were offered by the Petitioner and three letters offered by the Respondent were admitted into evidence. Two witnesses including Respondent testified on behalf of Respondent.
Seymour Astern, Respondent, is registered as a real estate salesman in Florida and has been so registered for approximately 15 years.
While employed by Las Vegas Land in the early 1970's as sales manager promoting out-of-state land sales, Respondent, as well as the developer of the land was indicted on numerous counts of mail fraud, misrepresentation, etc. Initially there were 23 felony charges against Respondent, all related to fraud and misrepresentation involving real estate sales.
Approximately one and one half years after being first charged, Respondent's attorney worked out an arrangement with the U.S. Attorney where
Respondent would plead guilty to the charge of accessory after the fact, a misdemeanor, and the felony counts would be dismissed.
Accordingly, on May 20, 1974, Respondent pleaded guilty to a violation of Title 18, Section 3, United States Code and was sentenced to he confined for
30 days and fined $500. The information to which Respondent pleaded guilty alleged that Respondent, knowing that one Lanvin had made a false report to the Department of Housing and Urban Development in violation of 18 U.S.C. 1012 did, knowingly and willfully assist said Lanvin in order to hinder and prevent his apprehension for trial and punishment.
While testifying in his own behalf Respondent admitted that he was acting as an Arizona sales agent for the Nevada land developer, Lanvin, who was subsequently convicted of mail fraud. Astern disclaimed personal knowledge of Lanvin's activities, contending that he only promoted the meetings of groups to who sales pitches were made leading to investment in Nevada land.
At the time he pleaded guilty to the charge of accessory after the fact, Respondent contends he did so on the assumption that the charge would be nolle prossed. He was aware that his plea of guilty was the basis for the U.S. Attorney dropping the felony charges against him and he fully understood the meaning of nolle prosequi. Yet he testified that had he known the charges would not be nolle prossed he would not have pleaded guilty, but would have gone to trial on the felony charges for mail fraud, misrepresentation, etc.
In late-filed Exhibit 5 the attorney who represented Astern at his trial in Arizona indicates he arranged for a plea of no contest to the misdemeanor charge of accessory after the fact and understood that such a conviction would not affect Respondent's Florida real estate license. In Exhibit 5 no mention is made of the charges ever being nolle prossed or of the sentence of the court being of a nature to shock either him or his client.
CONCLUSIONS OF LAW
Section 475.25 F.S. provides in pertinent part: "(1) The registration of a registrant may
be suspended for a period not exceeding two years . . . upon a finding of fact showing that the registrant has;
* * *
(e) Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude or fraudulent or dishonest dealings; . . ."
The primary issue here presented is whether the crime of accessory after the fact involves moral turpitude or fraudulent or dishonest dealings.
In Florida the offense of accessory after the fact is committed by one who, not being related by consanquinity or affinity to the offender, maintains or assists an offender or who gives the offender any other aid knowing that he has committed a felony, with intent that he shall avoid or escape detection, arrest, trial or punishment. 9 Fla. Jur. Crim. Law 53.
18 U.S.C. 3 has abrogated two of the common law elements contained in the Florida Statute and provides:
"Whoever knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. Except as otherwise expressly provided by an Act of Congress, an accessory after the fact shall be imprisoned or fined not more than one half the maximum fine prescribed for the punishment of the principal or both; or if the principal is punishable by death, the accessory shall be imprisoned for not more than ten years."
Thus an essential element of accessory after the fact of both federal state statutes is knowledge on the part of the offender that the principal has committed a crime. United States and Florida law differ in that under the former the offense can be committed by a relative and when the principal commits a misdemeanor; under Florida law the principal must commit a felony and the relative by sanquinity or affinity cannot become an accessory after the fact.
As stated by the Florida Supreme Court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (1933):
"Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. It may also be defined as anything done contrary to justice, honesty, principal
or good morals, though it often involves a question of intent."
Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also on the attendant circumstances. Rudolph v. United States, 6 F 2d 487 (App. D.C.), cert. den. 269 U.S. 559. The standard is public sentiment, which changes as the moral opinions of the public changes. 21 Am Jur 2d Crim. Law 24.
Here the licensee was found guilty of the crime of accessory after the fact by refusing to convey information to the interstate land office well knowing that Lanvin had committed federal crimes involving mail fraud, misrepresentation in land sales, etc. Under the circumstances here involved this constitutes moral turpitude despite the fact that the offense charge consisted only of a misdemeanor.
It is also to be noted that the offense of accessory after the fact was a common law crimes requiring scienter. All common law crimes consist of the criminal act or commission and the mental element commonly called intent. 9 Fla. Jur. Crim. Law 28 and cases there cited.
"Willful" simply means intentional and malicious, and malice refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's conduct toward that citizen. Op cite supra 29.
Even if it could be found that the offense of accessory after the fact here involved did not involve moral turpitude it could be found to involve fraud or dishonest dealing. When it is considered that Respondent's principal was charged with fraud, misrepresentation, etc. involving land sales Respondent's withholding information for the purpose of hindering or preventing the apprehension trial, or punishment of his principal constitutes fraud or dishonest dealing.
From the foregoing it is concluded that Respondent has been guilty of an offense against the laws of the United States involving moral turpitude, fraud or dishonest dealing, in violation of 475.25(1)(e) F.S. It is therefore,
RECOMMENDED that the registration of Seymour Astern as a real estate salesman be suspended for a period of sixty (60) days.
DONE and ENTERED this 27th day of April, 1976 in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
