Navarro-Lopez v. Gonzales

REINHARDT, Circuit Judge,

Concurring,

joined by Chief Judge SCHROEDER and Judges KOZINSKI, MICHAEL DALY HAWKINS, THOMAS, WARDLAW, WILLIAM A. FLETCHER, and PAEZ:

I join Judge Pregerson’s opinion except for Section A(2). Although I agree that accessory after the fact is not a crime of moral turpitude, I cannot agree that offenses involving fraud are subject to the same test as other crimes when we determine which offenses fall within that classification. Generally, crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved — if they offend society’s most fundamental values, or shock society’s conscience. Fraudulent offenses, however, are so classified simply by virtue of their fraudulent nature. Such has been the clearly established rule with respect to fraud since at least 1951. Jordan v. De George, 341 U.S. 223, 227-32 , 71 S.Ct. 703 , 95 L.Ed. 886 (1951). Nevertheless, Judge Pregerson is correct that “accessory after the fact” is not a crime of moral turpitude.

I.

Judge Pregerson’s opinion states that “crimes involving fraud are not a per se category of crimes involving moral turpitude,” but rather fraud is “an example of conduct that may fall under the umbrella of inherently base and vile conduct that shocks the conscience.” According to the Judge Pregerson, courts should evaluate crimes involving fraud the same way that they evaluate other crimes, by determining whether they are base, vile, or depraved. Doing so would, however, directly contradict what the Supreme Court stated unequivocally in Jordan to be the universal rule: “Without exception ... a crime in which fraud is an ingredient involves moral turpitude.” 341 U.S. at 227 , 71 S.Ct. 703 . It would also directly contradict what we reiterated only two years ago in Carty v. Ashcroft: “Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity.” 395 F.3d 1081, 1083 (9th Cir.2005). There was, in fact, nothing new in Carty, as far as this circuit is concerned. Almost thirty years earlier, we said in Winestoclc v. INS: “A crime having as an element the intent to defraud is clearly a crime involving moral turpitude.” 576 F.2d 234, 235 (9th Cir.1978); see also McNaughton v. INS, 612 F.2d 457, 459 (9th Cir.1980).

There are other offenses that are so base, vile, and depraved that they qualify as crimes of moral turpitude “even though they have no element of fraud.” Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995). These offenses involve “rather grave acts of baseness or depravity” such as murder, rape, and incest. Id. Not all serious crimes meet this standard, however. Indeed, we have determined, for example, that burglary, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir.2005), and assault with a deadly weapon, Carr v. INS, 86 F.3d 949, 951 (9th Cir.1996), do not involve moral turpitude. To be considered a crime of moral turpitude, a crime other than fraud must be more than serious; it must offend the most funda *1075 mental moral values of society, or as some would say, “shock[ ] the public conscience.” Medina v. United States, 259 F.3d 220, 227 (4th Cir.2001) (quoting Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988)).

II.

For the reasons explained earlier, we are not free to follow Judge Pregerson’s suggestion that we treat crimes involving fraud like all other crimes, under the base, vile, and depraved standard. Moreover, to do so in the face of controlling law would render our doctrine totally incoherent. We would be compelled to label all crimes involving fraud as base, vile and depraved, and thus to deem all instances of fraud more offensive to society than the numerous serious and even violent felonies that are punishable by lengthy sentences but that we deem not turpitudinous.

Not only would Judge Pregersoris approach render our existing doctrine incoherent, it would also dilute the meaning of moral turpitude. Terms like “base,” “vile,” and “depraved” are subjective and nebulous, so we rely on comparisons with other morally turpitudinous crimes when considering whether a crime fits that description. Under our current test for moral turpitude, we compare a crime’s depravity with that of crimes we have previously determined to be base, vile, and depraved' — crimes such as murder, rape, and incest. See, e.g., Rodriguez-Herrera, 52 F.3d at 240 . Judge Pregersoris approach would, in addition, require us to compare the depravity of a crime with that of minor fraud offenses, such as providing false information on a passport application. See Bisaillon v. Hogan, 257 F.2d 435, 437-38 (9th Cir.1958). Sweeping all fraud cases within the category of the most immoral offenses would lower the bar for what we deem to be base, vile, and depraved, with the likely result that all felonies would soon be included and the definition of morally offensive crimes would be expanded beyond recognition.

The term “crimes involving moral turpitude” is already at risk of losing its meaning. As Judge Pregerson points out in his opinion, an overly-broad definition of crimes of moral turpitude would leave nothing to distinguish those offenses from all other crimes or felonies — an “untenable” result. We must exercise care in defining the limits of special categories of offenses or the categories will disappear. The Immigration Code does not purport to require the deportation of all aliens convicted of a serious crime. Instead, Congress used the term “crime of moral turpitude” to apply to two categories of crimes: 1) fraudulent offenses; and 2) crimes of an especially morally offensive character. Maintaining the distinction between fraud offenses and offenses that are base, vile, and depraved helps preserve the integrity of the classification of “crimes involving moral turpitude.” If we do not adhere to our precedents limiting the scope of the term, the category will sooner or later come to mean simply “crimes.” This not only would dilute our language, it would also contravene Congress’s intent.

III.

The term “moral turpitude” is not an isolated example of words that lose their meaning through expansive interpretation. The term “aggravated felony,” defined in 8 U.S.C. § 1101 (a)(43), now includes crimes that are actually misdemeanors. United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170-71 (9th Cir.2002) (“An offense classified as a misdemeanor under state law may ... be considered an aggravated felony....”). One would think that the .category of “aggravated felony” would include only the most serious of felonies, but it actually includes crimes that are not even felonies at all. Likewise, the word “violence” has been expanded beyond recognition. Various courts have held that *1076 pickpocketing, United States v. Mobley, 40 F.3d 688, 696 (4th Cir.1994); tampering by unlawful operation of a vehicle, United States v. Johnson, 417 F.3d 990, 995-99 (8th Cir.2005); and escape, United States v. Mathias, 482 F.3d 743, 747 (4th Cir.2007), are “violent” crimes.

Expanding these categories beyond recognition at the expense of depriving common words like “felony” and “violence” of their ordinary meaning does a disservice to the law. In order for judges to apply laws and for citizens to obey them, words must have meanings that are consistent and predictable. Precision in language is necessary not only for effective communication, but also for a well-functioning legal system. As guardians of the rule of law, we should be careful not to contribute to the deterioration of the English language, with the loss of respect for the law that inevitably results.

IV.

Judge Pregerson’s opinion persuasively dispenses with the claim that accessory after the fact is base, vile, and depraved. 1 I will address at greater length, however, the dissenters’ argument that fraud is inherent in the crime of accessory after the fact.

When we analyze a statute to determine whether the conduct it criminalizes is fraudulent, and thus whether the offense qualifies as a crime of moral turpitude, we consider whether the statute meets either of two conditions: that intentional fraud is an element of the offense; or that the nature of the crime is inherently fraudulent. See Goldeshtein v. INS, 8 F.3d 645, 647-50 (9th Cir.1993); McNaughton, 612 F.2d at 459 . As Judge Pregerson’s opinion states, it is clear that California’s accessory after the fact statute does not, on its face, require fraud for conviction. Thus, it is necessary to determine whether fraud is “implicit in the nature of the crime.” Winestock, 576 F.2d at 235 .

Our cases hold that in order to be inherently fraudulent, a crime must involve knowingly false representations made in order to gain something of value. See Goldeshtein, 8 F.3d at 649 . 2 Accessory after the fact does not necessarily in *1077 volve false representations, nor does it necessarily result in personal gain. While a conviction under California Penal Code § 32 could result from making false representations to authorities, see, e.g., People v. Plengsangtip, 148 Cal.App.4th 825, 836 , 56 Cal.Rptr.3d 165 (2007) (“It is clear that certain lies or ‘affirmative falsehoods’ to authorities, when made with the requisite knowledge and intent, will constitute the aid or concealment contemplated by section 32.”), such conduct is not a prerequisite. Many accessory after the fact convictions result from concealment or assistance in evading the authorities and do not involve false representations or affirmative deceit. See People v. Riley, 20 Cal.App.4th 1808, 1816-17 , 25 Cal.Rptr.2d 676 (1993) (stating that attempting to dispose of the murder weapon constitutes accessory after the fact); People v. Gunn, 197 Cal.App.3d 408, 415-16 , 242 Cal.Rptr. 834 (1987) (holding that driving the principal from the crime scene and assisting in concealing the weapon could amount to accessory after the fact); People v. Scott, 170 Cal.App.3d 267, 269-70 , 215 Cal.Rptr. 618 (1985) (holding that the driver of a getaway car can be convicted of accessory after the fact). Depriving the government of evidence or information does not, however, rise to the level of fraud. Goldeshtein, 8 F.3d at 649 .

Even when an accessory after the fact conviction does involve false representations to the authorities, the defendant will often not gain something of value. . The type of benefit at issue in fraud cases is not the evasion of criminal penalties, but rather something more tangible, such as money, McNaughton, 612 F.2d at 459 , a passport, Bisaillon, 257 F.2d at 437 , naturalization papers, United States ex rel. Popoff v. Reimer, 79 F.2d 513, 515 (2d Cir.1935), or an occupational deferment from military service, Matter of R — , 5 I. & N. Dec. 29 , 38 (BIA 1952). Helping another evade criminal penalties involves preventing a loss of liberty, not securing a gain of something of tangible value.

Judge Tallman’s dissent cites Itani v. Ashcroft, 298 F.3d 1213 (11th Cir.2002), and Padilla v. Gonzales, 397 F.3d 1016 (7th Cir.2005), as support for its argument that accessory after the fact is an inherently fraudulent offense. Neither case is persuasive. In Itan% the court found that misprision of felony was a crime of moral turpitude because “it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.” 298 F.3d at 1216 . All crimes “run contrary to accepted societal duties.” Thus, the court’s statement that misprision does so serves at most to justify the classification of that act as a crime, not as a crime of moral turpitude. The court offers no explanation at all for its pronouncement that misprision involves dishonest or fraudulent activity. It simply offers that bare conclusion. Further, the court wrongly equates dishonest behavior with fraud. Padilla uses the same faulty reasoning in concluding that obstruction of justice is a crime of moral turpitude because it “specifically entails dishonesty.” 397 F.3d at 1020 . Most crimes involve dishonesty of some kind, but our precedents require more for an offense to be considered fraudulent. See, e.g., Carty, 395 F.3d at 1084 ; Goldeshtein, 8 F.3d at 649 . “Fraud” is a term with a specific meaning in the law — it is not synonymous with “dishonesty.” A construction of moral turpitude that includes all acts of dishonesty, when coupled with the expansive *1078 construction the dissent would undoubtedly give to the other prong of moral turpitude, would undoubtedly result in the inclusion of almost all criminal offenses in a category that was intended to single out certain types of crimes as particularly offensive to society’s values. If, as the logic of the dissent suggests, the term “moral turpitude” applies to the offense of assisting any person who has committed a crime — whether that underlying crime is a crime of moral turpitude or not, whether, indeed, the underlying crime is only a misdemeanor — simply because that offense is “dishonest,” then the difference between criminal conduct and crimes of moral turpitude has truly been eliminated and all crimes have finally become equally turpitu-dinous.

Conclusion

Judge Pregerson’s opinion combines the two prongs of our moral turpitude doctrine by applying the same standard both to offenses involving fraud and to offenses involving depravity, contrary to controlling Supreme Court and Ninth Circuit law. Moreover, that method of analysis would have the effect of rendering the term “crimes of moral turpitude” even more difficult to apply than it already is. We would be required to compare crimes that are entirely different in kind, and the inevitable result would be even greater incoherence in our decisions. Furthermore, such an approach lacks clear limits and could lead to the expansion of the definition of crimes of moral turpitude to the point of including nearly every criminal offense. Our current analytical method, under which fraud is deemed turpitudinous under a different standard than is applicable to other crimes, has a limiting effect on the scope of offenses that may be deemed base, vile, or depraved. Given that we are not free to eliminate fraud from the set of crimes considered to be turpitudinous, we must retain the distinction between the two classes of offenses in order to keep the concept of moral turpitude within its historic bounds.

Under our two-pronged approach, accessory after the fact under California Penal Code § 32 is neither a crime of fraud nor a crime of depravity. Accordingly, I agree that it is not a crime involving moral turpitude.

. Judge Tallman's reliance on the California Supreme Court's holding in In re Young, 49 Cal.3d 257 , 261 Cal.Rptr. 59 , 776 P.2d 1021 (1989), that Penal Code § 32 is a crime of moral turpitude for the purposes of California Business and Professions Code § 6106 is misplaced. The term "moral turpitude” encompasses far more conduct in California state bar disciplinary proceedings than it does in the federal immigration context. The California Supreme Court has explained that "[a]ny crime or misconduct reflecting dishonesty, particularly when committed in the course of his practice, is clearly relevant to tire fitness of an attorney to continue to practice law, and thus is conduct involving moral turpitude for purposes of State Bar disciplinary proceedings.” Baker v. State Bar, 49 Cal.3d 804 , 263 Cal.Rptr. 798 , 781 P.2d 1344 , 1350 n. 3 (1989). Indeed, a lawyer’s conduct need not even amount to a crime to be considered morally turpitudinous under § 6106. See Martin v. State Bar, 20 Cal.3d 717 , 144 Cal.Rptr. 214 , 575 P.2d 757, 758 (1978) ("Habitual neglect of client interests, constituting wilful or grossly negligent conduct, involves moral turpitude under Business and Professions Code section 6106.”).

. Judge Tallman claims in his dissent that Goldeshtein does not hold that establishing fraud requires that a defendant have made false representations in order to obtain something. Instead, he contends that Goldeshtein merely found such factors to be "instructive.” Id. This reading is erroneous. In Goldeshtein , we distinguished the statute in question from other statutes solely on the basis that the latter all involved falsification in order to obtain some tangible benefit. 8 F.3d at 649 ("Unlike the alien in Flores, however, Goldeshtein did not obtain anything from the government by deceit, graft, trickery, or dishonest means.... The other cases upon which the INS and the BIA rely are subject to the same distinction....”). It is plain from *1077 our opinion that in order to establish that fraud is inherent in an offense, the criminalized conduct must necessarily involve false representations or deceit for the purpose of gaining something of value.