The INA defines as an aggravated felony: “an offense relating to . . . counterfeiting . . . for which the term of imprisonment is at least one year.”[94]

 

            This aggravated felony is not defined by reference to a federal statute, and the BIA has yet to adopt a “generic” definition of the offense.[95]  “Counterfeiting” is defined under federal law by 18 U.S.C. § § 471 ff.  Counsel may wish to question whether this aggravated felony includes only the counterfeiting of moneys (cash, securities, obligations, etc.), or includes counterfeit labels, CDs, and the like.

 

The Ninth Circuit has held[96] that a conviction under 18 U.S.C. § 472[97] for felony possession of counterfeit U.S. obligations is an aggravated felony as an offense “relating to . . . counterfeiting.”[98]  While possessing a counterfeit instrument is not the same act as counterfeiting (manufacturing or altering one), the court stated that the phrase “relating to” means that the aggravated felony definition “necessarily covers a range of activities beyond those of counterfeiting or forgery itself.”  The court noted that to be guilty of violating the offense at issue, the defendant had to have passed or possessed the bill knowing it was counterfeit and intending to defraud.  It found that the “requisite knowledge and intent to defraud was sufficient to make a conviction under 18 U.S.C. § 472 one that is ‘related to’ the act of counterfeiting itself.”[6]

 

[99] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[94] See § § 4.34-4.36, supra.

[95] Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000), construing the definition of “relating to counterfeiting” in INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[96] Punishes anyone who “with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States.”

[97] See § 4.37, supra.

[98] Albillo-Figueroa v. INS, 221 F.3d, at 1073.  See also 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), constitutes an aggravated felony, rejecting an argument that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so, and conspiracy to possession cannot be a crime “related to counterfeiting” because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments).

AGGRAVATED FELONY - CONSPIRACY
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).

     There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).

     There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").

     California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."

     When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.

AGGRAVATED FELONY - CONSPIRACY
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).

     There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).

     There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").

     California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."

     When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.

First Circuit

AGGRAVATED FELONY - COUNTERFEITING - COUNTERFEITING
Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. Sept. 30, 2008) (Rhode Island conviction for trafficking in trademark counterfeits, in violation of R.I. Gen. Laws 11-17-13(c)(1), for immigration purposes).

AGGRAVATED FELONY - BANK FRAUD - COUNTERFEITING
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (Federal conviction for conspiracy under 18 U.S.C. 371, where the underlying offense was a violation of 18 U.S.C. 513(a) [possession of counterfeit security] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes). http://laws.lp.findlaw.com/1st/051282.html

Fifth Circuit

AGGRAVATED FELONY " CONSPIRACY " OVERT ACT
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. Nov. 1, 2012) (conspiracy for purposes of U.S.S.G. 2L1.2(b)(1)(A)(i), does not require an overt act, where the conviction falls within 21 U.S.C. 846 (attempt and conspiracy)).

Ninth Circuit

AGGRAVATED FELONY " COUNTERFEITING " TRADEMARK COUNTERFEITING
Rodriguez-Valencia v. Holder, ___ F.3d ___, 2011 WL 2899605 (9th Cir. Jul. 21, 2011) (per curiam) (California conviction for willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark, in violation of Penal Code 350(a)(2), constitutes an aggravated felony as an offense relating to ... counterfeiting under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R), rejecting argument that this aggravated felony covers only counterfeiting of currency); see Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir.2008) (quoting Park v. INS, 472 F.3d 66, 72 (3d Cir.2006); Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d Cir.2004) (The term [relating to in INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R),] ... suggest[s] Congress's intent to reach more broadly than any single statute.); see also Morales v. Trans World Airlines, 504 U.S. 374, 383"84, 112 S.Ct. 2031, 119 L.Ed.2d 157, (1992) (finding that the phrase relating to has a broad scope ... and an expansive sweep.).