Crimes of Moral Turpitude

 

Conspiracy to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[159]  It is not a CMT if the substantive offense does not constitute a CMT. [160]

 

Jordan v. De George, 341 U.S. 223 (1951) (conspiring to defraud the United States, possessing whiskey and alcohol with intent to sell it in fraud of law and evade the tax, and removing and concealing liquor with intent to defraud the United States of the tax, under 18 U.S.C. § 88 (now 18 U.S.C. § 371), and 26 U.S.C. § § 1155(f), 1440 and 1441 (now 26 U.S.C. § § 2806(f), 3320, 3321 (1934 ed.)), held crimes of moral turpitude, since fraud was an essential element);

Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. § § 371, 513(a), probably constitutes crime of moral turpitude, triggering permanent inadmissibility);

McNaughton v. INS, 612 F.2d 457 (9th Cir. 1980) (Canadian conviction of conspiracy to affect public market price of stock by deceit, falsehood, or other fraudulent means with intent to defraud, held to be crime involving moral turpitude);

Gambino v. INS, 419 F.2d 1355 (2d Cir. 1970), cert. den., 399 U.S. 905, 26 L.Ed.2d 559, 90 S.Ct. 2195 (1970) (conviction of conspiracy to violate internal revenue laws, including intent to defraud United States of taxes due, involved “moral turpitude”);

United States ex rel. Dentico v Esperdy, 280 F.2d 71 (2d Cir. 1960) (conspiracy to extort money);

Ex Parte Tozier, 2 F.2d 268 (D.Me. 1924), aff’d, Howes v. Tozer, 3 F.2d 849 (1st Cir. 1925) (conspiracy to extort);

Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (“if a simple assault does not involve moral turpitude and the felony intended as a result of that assault also does not involve moral turpitude, then the two crimes combined do not involve moral turpitude”);

Matter of Bader, 17 I. & N. Dec. 525 (BIA 1980) (conspiracy to defraud is a CMT);

Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980) (“in order for a conspiracy offense to be a crime involving moral turpitude, it either must contain the element of fraud, or the underlying substantive offense must involve moral turpitude”);

Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (conviction of conspiracy to affect the public market in securities with intent to defraud, in violation of Canada Criminal Code § 338(2), is a CMT);

Matter of Wood, 12 I. & N. Dec. 170 (BIA 1967);

Matter of Batten, 11 I. & N. Dec. 271 (BIA 1965) (conviction of conspiracy in violation of Federal Reserve Act, 18 U.S.C. § 656, for embezzling and misapplying funds, monies, and securities, constituted a crime involving moral turpitude, although intent to defraud is not expressly required by the statute as an essential element, since it has been required as an element by judicial decisions), citing Golden v. United States, 318 F.2d 357 (1st Cir. 1963); Seals v. United States, 221 F.2d 243 (8th Cir. 1955); Ramirez v. United States, 318 F.2d 155 (9th Cir. 1963); Logsdon v. United States, 253 F.2d 12 (6th Cir. 1958); Williamson v. United States, 332 F.2d 123 (11th Cir. 1964); United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1945);

Matter of Gaglioti, 10 I. & N. Dec. 719 (BIA 1964) (conspiracy to establish gambling games in violation of 18 Penn. Statutes 4302 is not a CMT since gambling violations ordinarily are not CMT and the gambling conspiracy statute does not require evil or fraudulent intent);

Matter of S, 9 I. & N. Dec. 688 (BIA 1962) (conviction of a general conspiracy stated in one count to commit, among other offenses, the crimes of forgery in the third degree and uttering a forged instrument, which are crimes involving moral turpitude, is a conviction of a crime involving moral turpitude);

Matter of E, 9 I. & N. Dec. 421 (BIA 1961) (conspiracy to defraud the United States by impeding the functions of a U.S. agency is a CMT);

Matter of M, 8 I. & N. Dec. 535 (BIA 1960) (conspiracy to defraud the United States by avoiding taxes constitutes a CMT);

Matter of O, 8 I. & N. Dec. 291 (BIA 1960) (conspiracy to violate the Foreign Agents Registration Act does not involve moral turpitude, since the substantive offense does not involve moral turpitude);

Matter of K, 7 I. & N. Dec. 178 (BIA 1956) (conspiracy to violate 18 U.S.C. § 283 – making and possession of molds of U.S. coins, and 18 U.S.C. § 277 – possession and passing counterfeit coins, are CMTs), overruled in part by Matter of Flores, 17 I. & N. Dec. 225, 229 (BIA 1980) (uttering and selling false or counterfeit paper relating to registry of noncitizens in violation of 18 U.S.C. § 1426(b) entails a deliberate deception and impairment of governmental functions, is inherently fraudulent, and is therefore a crime involving moral turpitude);

Matter of G, 7 I. & N. Dec. 114 (BIA 1956) (conspiracy to commit an offense against the United States, in violation of 26 U.S.C. § § 2803(a), (g), 2812, is not a CMT since the substantive offenses do not involve moral turpitude);

Matter of A, 6 I. & N. Dec. 685 (BIA 1955) (conspiracy to operate a still, in violation of 18 U.S.C. § 88, does not involve moral turpitude, since fraud was not charged as an element of the conspiracy and since the substantive offenses are regulatory offenses which do not involve moral turpitude);

Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction);

Matter of P, 5 I. & N. Dec. 582 (BIA 1953);

Matter of R, 5 I. & N. Dec. 29 (BIA, AG 1952);

Matter of P, 3 I. & N. Dec. 56 (BIA 1947) (conviction of conspiracy, with intent to defraud, in violation of Canada Criminal Code § 444 involves moral turpitude);

Matter of F, 2 I. & N. Dec. 754 (BIA 1946) (conviction of conspiring by deceit, falsehood, and other fraudulent means to defraud His Majesty the King of customs duties in violation of Canada Criminal Code § 444 involves moral turpitude);

Matter of B, 2 I. & N. Dec. 542 (BIA 1946) (conviction of conspiracy, in violation of Canada Criminal Code § 573, like that offense in the United States, involves moral turpitude if the offense committed or intended or attempted under such conspiracy involves that element, and in ascertaining whether such latter offense involves that element, the standard prevailing in the United States is to be used);

Matter of S, 2 I. & N. Dec. 225 (BIA 1944) (conspiracy to violate 18 U.S.C. § 80 involved moral turpitude);

Matter of A, 1 I. & N. Dec. 571 (BIA 1943) (conspiracy to violate the Tariff Act of 1930, 19 U.S.C. § 1593, with intent to defraud the revenue of the United States is a CMT).

 

            But see Matter of B, 5 I. & N. Dec. 255 (BIA 1953) (the statute (18 U.S.C. § 80) includes several crimes, and it is possible that some do not involve moral turpitude, but without the record of conviction and without information as to the precise clause of 18 U.S.C. § 80 the respondent was convicted of violating, the court cannot determine definitely whether the crime, of which he was convicted, involved moral turpitude).

 

            A conviction of conspiracy to defraud the United States, however, may be held to be an independent crime of moral turpitude.

 

Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951);

Morgano v. Pilliod, 299 F.2d 217 (7th Cir. 1962), cert. den., 370 U.S. 924, 82 S.Ct. 1564, 8 L.Ed.2d 505 (1962) (conspiracy to defraud United States of taxes on distilled spirits in violation of 18 U.S.C. § 88, now 18 U.S.C. § 371, involved moral turpitude);

Matter of E, 9 I. & N. Dec. 421 (BIA 1961) (conviction of conspiracy to defraud the United States under 18 U.S.C. § 371 by impeding, obstructing, and attempting to defeat the lawful functions of an agency of the United States is a crime involving moral turpitude);

Matter of G, 7 I. & N. Dec. 114 (BIA 1956) (conviction for violation of 18 U.S.C. § 88 creates two crimes: (1) conspiracy to commit an offense against the United States, and (2) conspiracy to defraud the United States in any manner or for any purpose; violation of the former does not involve moral turpitude while violation of the latter does involve moral turpitude).

 

For discussion of conspiracy as an independent crime, see Callanan v. United States, 364 U.S. 587 (1961); Matter of A, 1 I. & N. Dec. 571 (BIA 1943) (conspiracy to violate § 593, Tariff Act of 1930, 19 U.S.C. § 1593, with intent to defraud the revenue of the United States is a crime involving moral turpitude).

 

Conspiracy to commit an offense against the United States does NOT involve moral turpitude unless the substantive offense does. 

 

Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962);

Matter of G, 7 I. & N. Dec. 114 (BIA 1956).

 

Conspiracy to misuse ration stamps is NOT a CMT.

 

Matter of P, 5 I. & N. Dec. 582 (BIA 1953) (conviction of conspiracy to illegally transfer and use gasoline ration stamps in violation of ration order No. 5C issued under the Second World War Powers Act of 1942 is not a crime involving moral turpitude, there being no indication in the statute, the regulation, or the record of conviction that an intent to defraud was a necessary part of the crime).

[159] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(4).

[160] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(2). The Manual also says that being an accessory before the fact constitutes a CMT, without limiting this statement to substantive offenses that are CMTs.  Since accessory before the fact and aiding and abetting are equivalent, this was doubtless an error in the Manual.  See ibid., N. 2.4(b).