Criminal Defense of Immigrants

(A)  Intent to Defraud.  The courts have consistently held offenses with intent to defraud as an essential element to be crimes involving moral turpitude.[55]  The Supreme Court held that an element of fraud has consistently been regarded as such a mark of evil or corrupt intent that American courts invariably consider all such crimes as being offenses involving moral turpitude.[56]  Fraud has ordinarily determined whether crimes not of the gravest character involved moral turpitude, and whatever else the phrase “crime involving moral turpitude” may mean in peripheral cases, crimes in which fraud was an essential element have always been regarded as crimes involving moral turpitude.  In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude.

Willfully attempting to evade payment of income tax by filing false and fraudulent returns was held to be a crime involving moral turpitude.  Stating that income tax evasion or attempted evasion could not be “willful” without a specific intent to defraud, the court said that a noncitizen “permitted to enter this country and to enjoy the blessings of freedom under the Constitution and laws of the United States” who willfully evades or attempts to evade the payment of his fair share of the taxes needed to support our government is surely engaged in conduct involving moral turpitude.[57]

[55] E.g., Matter of McNaughton, 16 I. & N. Dec. 569, 574 (BIA 1978).

[56] Jordan v. De George, 341 U.S. 223 (1951).

[57] Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. den., 383 U.S. 915 (1966) (relatively minor California misdemeanor conviction of issuing an insufficient funds check with intent to cheat and defraud as an essential element held to constitute a crime involving moral turpitude); Costello v. INS, 311 F.2d 343 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 120 (1964); Rukavina v. INS, 303 F.2d 645 (7th Cir. 1962) (Illinois conviction of obtaining money by means of a confidence game held to be a crime involving a “fraudulent scheme,” necessarily involving cheating or swindling, and therefore constituted a CMT); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892 (1957) (“willful” income tax evasion statute required the trier of fact to find evil motive or bad purpose plus a specific intent to defraud the government, which intent to defraud, said the court, supplied the necessary element sufficient to make a violation of this section a crime involving moral turpitude); United States ex rel. Millard v. Tuttle, 46 F.2d 342 (D.La. 1930) (encumbering mortgaged property with intent to defraud held CMT); Chanan Din Khan v. Barber, 147 F.Supp. 771 (D.Cal. 1957), aff’d, 253 F.2d 547 (9th Cir. 1957), cert. den., 357 U.S. 920 (1958) (willful income tax evasion held to be a crime involving moral turpitude, since crimes in which fraud is an ingredient have always been regarded as involving moral turpitude, since “wilfulness” has been judicially defined as meaning “bad faith,” “bad purpose,” and “evil motive,” and the government must prove that the evading taxpayer had a specific intent to evade taxation, amounting to an intent to defraud the United States).