(B)  Crimes of Moral Turpitude.

 

Conspiracy to commit an offense constitutes a crime involving moral turpitude if the substantive offense constitutes a CMT.[217]  It is not a CMT if the substantive offense does not constitute a CMT. [218]

 

Board of Immigration Appeals:

 

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 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 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).

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) (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, since no fraud required to commit offense).

 

Matter of B, 5 I. & N. Dec. 255 (BIA 1953) (conspiracy to violate 18 U.S.C. § 80 (now 18 U.S.C. § 1001) 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).

 

Ninth Circuit:

 

Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962) (conspiracy to violate 18 U.S.C. §   1001 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).

[217] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(4) 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”).  See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.82 (2005).

[218] 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).

Ninth Circuit

CAL CRIM DEF " CONSPIRACY " OBJECT OF A CONSPIRACY IS NOT AN ELEMENT AGGRAVATED FELONY " CONSPIRACY
People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (2001) (the object of a conspiracy is not an element of a California conspiracy offense: [T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.); id. at 245 (So long as there is unanimity that crime was the object of the agreement, conspiracy is established regardless of whether some jurors believe that crime to be murder and others believe that crime to be something else.). Note: As long as Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. August 22, 2014), remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction. Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).