Safe Havens

“The word ‘willful’ or ‘willfully’ when used in the definition of a crime, it has been said time and again, means only intentionally or purposely as distinguished from accidentally or negligently and does not require any actual impropriety; while on the other hand it has been stated with equal repetition and insistence that the requirement added by such a word is not satisfied unless there is a bad purpose or evil intent.”[986]

“Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them.  But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended.  When King David ordered Uriah the Hittite to be set in the forefront of the hottest battle, he intended the death of Uriah only, yet he knew for a certainty that many others of his men would fall at the same time and place.”[987]

If a crime of moral turpitude is committed willfully and knowingly, the conviction will be a crime of moral turpitude.[988]  This appears to include constructive as well as actual knowledge.[989]  However a crime that is not a crime of moral turpitude, such as simple assault, does not become a CMT only for the reason that it was done willfully (or recklessly) and knowingly.[990] 

A crime of moral turpitude that is done willfully, but without knowledge, arguably should not be a crime of moral turpitude.[991] 

Finally, when an offense is done knowingly, but without criminal intent (or only negligently), the offense is not necessarily a CMT, even if it would be a CMT if committed willfully.  For example, where a crime of passing a check with insufficient funds does not require intent to defraud, but mere knowledge, the bad check offense does not involve moral turpitude.[992]

[986] Rollin M. Perkins & Ronald N. Boyce, Criminal Law 875-76 (3d ed. 1982).

[987] John Salmond, Jurisprudence 380-81 (Glanville L. Williams ed., 10th ed. 1947).

[988] See, e.g., Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (willful commission of spousal abuse, an act of baseness and depravity contrary to accepted moral standards, was a crime involving moral turpitude); Matter of Tran, 21 I. & N. Dec. 291, 293-294 (BIA 1996) (willful infliction of injury upon a cohabitant or parent of the offender’s child in violation of California Penal Code § 273.5(a) is as reprehensible as spousal abuse and the offense therefore involves moral turpitude).

[989] De Leon-Reynoso v. Ashcroft, 294 F.3d 1143 (3d Cir. June 11, 2002) (Pennsylvania conviction of receiving stolen property, under Pa. Cons. Stat. Ann. § 3925(a), providing that a person is guilty of theft if the person “intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen,” held a CMT since the subjective belief involved is morally equivalent to actual knowledge); Michel v. INS, 206 F.3d 253, 262-63 (2d Cir. 2000); United States v. Castro, 26 F.3d 557, 558 n.1 (5th Cir. 1994).

[990] Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (third-degree assault is not a crime involving moral turpitude where the offense is similar to a simple assault; where reckless conduct is an element, a crime of assault can be but is not automatically a CMT).

[991] De Leon-Reynoso v. Ashcroft, 294 F.3d 1143 (3d Cir. June 11, 2002); Matter of K, 2 I. & N. Dec. 90 (BIA 1944) (German conviction which may be based on negligent receipt of stolen property by a person acting in good faith under circumstances which should have led him to make inquiry held not to be CMT).  But see Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), with knowledge or intent found to be a CMT).

[992] Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992).