(B)  Crimes of Moral Turpitude.[206]

 

If the substantive offense is a CMT, a conviction for aiding the commission of that offense has traditionally been found to constitute a CMT.[207]  There are arguments available to the contrary.  See § 7.7(B), supra, and Appendix H, infra.  A conviction of aiding and abetting the commission of an offense that is not a CMT will not be considered a CMT.[208] 

 

Board of Immigration Appeals:

 

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 Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (abetting non-immigrant visitor in executing false application for extension of stay not held not to be a CMT, since the substantive offense is not a CMT).

 

[206] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.3 (2005).

[207] 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.

[208] “Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not come into play.”  9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).

Ninth Circuit

AIDING AND ABETTING - AFFIRMITVE ACT REQUIRED
Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

AGGRAVATED FELONY AIDING AND ABETTING - THEFT
United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) ", decision withdrawn pending hearing en banc, United States v. Vidal, __ F.3d__, 2006 WL 1822282 (9th Cir. Jun 29, 2006)." (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal reentry sentence).
http://caselaw.lp.findlaw.com/data2/circs/9th/0450185p.pdf  NOTE: The court distinguished the "aiding and abetting" language in United States v. Penuliar, 395 F.3d 1037, 1041 (9th Cir. 2005), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), on the basis that, at the time Mr. Vidal was convicted, comment 4 to U.S.S.G. 2L1.2 stated that any offenses involving aiding and abetting, conspiracy, or attempt to commit one of the principle offenses were treated equally to the principle offense. Corona-Sanchez concerned an earlier version of the guideline, without this comment, and Penuliar was a deportation case. The comment upon which Vidal is based was added to the comments to U.S.S.G. 2L1.2, effective November 1, 2001, and was deleted from the comments, effective November 1, 2003. This case therefore represents (1) a situation where an offense may be considered an aggravated felony for sentencing purposes, but not for immigration purposes, (2) a very limited situation that will only apply to illegal re-entries occurring between November 1, 2001 and November 1, 2003.

AIDING AND ABETTING
Martinez-Perez v. Ashcroft, __ F.3d __ (9th Cir. August 3, 2005) (under California law, an aider and abettor can be adequately charged in language accusing him or her of directly committing the offense, therefore a plea to a charge alleging direct commission of a theft does not establish that the offense pled to was not aiding and abetting, and therefore does not establish that the offense is an aggravated felony).  See also Penuliar v Aschroft, 395 F.3d 1037, 1045-46 (9th Cir. 2005).

AIDING AND ABETTING - ABSENCE OF CO-DEFENDANTS NOT DISPOSITIVE
The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses. The Court also recognized that the absence of codefendants is not dispositive. There is no requirement in California criminal law that codefendants be charged in the same complaint, or even the same case number. Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency. It is not necessarily true that all codefendants are arrested or charged, or even identified. Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting anyway without the verdict being overturned as an inconsistent verdict. See Model Penal Code 2.07(7)(1985) ("An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.").      Furthermore, Immigration courts cannot even consider the record of conviction of a codefendant to be part of the record of conviction of the defendant. Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the persons codefendant).

Other

AIDING AND ABETTING - SENTENCING VS. IMMIGRATION CASES
The sentencing guidelines for illegal reentry cases were amended on November 1, 2001 to add Application Note 4, which provided: "4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." This Application Note was in effect until November 1, 2003, when it was deleted from the guideline commentary. USSG, 2L1.2, 18 U.S.C.A. (Effective November 1, 1987, and amended effective January 15, 1988; November 1, 1989; November 1, 1991; November 1, 1995; November 1, 1997; November 1, 2001; November 1, 2002; November 1, 2003.) The Vidal case dealt with an offense that arose under the guidelines as they existed between November 1, 2001, and November 1, 2003, when the aiding provision was deleted from the commentary.
     The Ninth Circuits decision in United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) ", decision withdrawn pending hearing en banc, United States v. Vidal, __ F.3d__, 2006 WL 1822282 (9th Cir. Jun 29, 2006)." (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal reentry sentence), is limited only to sentencing (i.e. illegal reentry) cases where the sentencing occurred between November 1, 2001 and November 1, 2003. The "aiding and abetting" language in United States v. Penuliar, 395 F.3d 1037, 1041 (9th Cir. 2005), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), still control for immigration cases, and illegal reentry cases not applying the sentencing guidelines effective during the 2001-2003 window.      Arguably, Corona-Sanchez should apply regardless of the sentencing date, since the distinguishing factor in Vidal was merely the addition of a comment to the sentencing guidelines, which arguably contradicted Congressional intent. The Sentencing Reform Act did not authorize Guideline commentary. Stinson v. United States, 113 S. Ct. 1913, 1917 (1993).  In Stinson, the Supreme Court held that Guideline commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." As a matter of statutory constuction, the Ninth Circuit has often held Congress did not intend to include in the aggravated felony definition inchoate crimes that were not mentioned expressly.  See, e.g., Leyva-Licea v INS, 187 F.3d 1147 (9th Cir. 1999) (involving solicitation offenses); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (involving aiding and abetting).  Congress knew how to include "aiding and abetting" offenses in 8 U.S.C. 1101(a)(43)(U), but chose instead to include only attempts and conspiracies. As a result, the commentarys blanket inclusion of aiding and abetting offenses is inconsistent with 8 U.S.C. 1101(a)(43).  Vidal relies on Rodriguez-Rodriguez, which interpreted whether burglary is a crime of violence for purposes of U.S.S.G. 2L1.2, cmt. n. 1(B)(iii).  The 16-level crime of violence enhancement at issue in Rodriguez-Rodriguez is not dependent on the statutory definition of "aggravated felony" under 8 U.S.C. 1101(a)(43).  As such, Guideline commentary need not conform with the definition of aggravated felony. The panel in Vidal adopted Rodriguez-Rodriguezlanguage about Guideline commentary without noting that Rodriguez did not involve a statutory definition of aggravated felony.  Since Rodriguez-Rodriguez did not involve a comment that was inconsistent with the aggravated felony definition, Stinson was not applicable.      In Vidal, the Ninth circuit did not apply Stinson to the commentary to see whether the aiding and abetting comment exceeded the scope of the Commissions authority because it thought that Rodriguez-Rodriguez controlled and this does not appear to have been raised.  If the Ninth Circuit applied Stinson, there is a reasonably good argument that the statutory construction cases like Levya, Penuliar and Coronado-Durazo control as to Congressional intent, which arguably limits what the commentary can say, especially since in Leocal the Supreme Court held the aggravated felony statute means the same in civil and criminal cases. Thanks to Dan Kesselbrenner.

AIDING AND ABETTING - STATE VS. FEDERAL DEFINITION
In Vidal the Court recognized that the California definition of aiding and abetting includes "encouragement," which in California includes "promotion and instigation." In California, A person may be considered an aider and abettor if he/she acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense." People v. Beeman, 35 Cal.3d 547, 560 (1984). See also, People v. Prettyman, 14 Cal. 4th 248 (1996).      This is language in not included in the Federal definition aiding and abetting, and one can argue that the California definition of aiding and abetting is broader than the federal definition.      In Vidal, the Ninth Circuit neglected to explain how the federal definition of aiding and abetting" addresses the issue of "encouraging." It only relies on the language of jury instructions related to 18 U.S.C.S. 2(a) aiding and abetting and the decision in United States v. Barnett, 667 F.2d 835 (9th Cir. 1982). However, the Barnett decisions inclusion of the words "otherwise encourages" in its definition of "abettor" is only in passing. The facts of the case do not specifically relate to an aider-abettor who only "encouraged." The defendant in Barnett gave information to the co-defendant as to where the co-defendant could obtain certain illegal substances. Arguably, this action was more than just passively supporting the co-defendant in perpetrating the crime. Thanks to Kathy Brady.