Criminal Defense of Immigrants


§ 20.17 h. Willfulness or Knowledge

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“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.”[95]


“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.”[96]


If a crime of moral turpitude is committed willfully and knowingly, the conviction will be a crime of moral turpitude.[97]  This appears to include constructive as well as actual knowledge.[98]  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.[99] 

A crime of moral turpitude that is done willfully, but without knowledge, arguably should not be a crime of moral turpitude.[100]  Likewise, 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.[101]


                The Eighth Circuit has equated committing an offense with reason to know that the act would cause damage with reckless intent,[102] which may or may not be sufficient for purposes of finding moral turpitude.[103]

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

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

[97] 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).

[98] De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (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).

[99] 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).

[100] 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).

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

[102] Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.7 (8th Cir. Jan.31, 2006).

[103] See § 20.15, supra.



Marmolejo-Campos v. Gonzales, __ F.3d __, 2007 WL 2610788 (9th Cir. Sept. 12, 2007) (Arizona conviction for violation of A.R.S. 28-1383(A)(1), driving under the influence with knowledge that defendant did not have valid license to drive, is a crime involving moral turpitude for immigration purposes).

Fifth Circuit

United States v. Saucedo-Munoz, 307 F.3d 344 (5th Cir 2002) (addresses the difference in mental states between actual knowledge and deliberate indifference).

Seventh Circuit

Ghani v. Holder, 557 F.3d 836 (7th Cir. Mar. 9, 2009) (federal conviction for making a false statement to an officer, in violation of 18 U.S.C. 1001, is categorically a crime involving moral turpitude; "Even if the conduct for which Mr. Ghani was convicted did not rise to the level of fraud, however, his conviction necessarily establishes that he knowingly and willfully lied to the Government of the United States about a material matter.") NOTE: In the Seventh Circuit, Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) applied Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA 2007), and resulted in the A.G.s new analytical model in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008). The court in this case did not explain how it was determining whether the conviction was a CMT (i.e, under Taylor or Silva-Trevino). The Courts statement that a violation of 18 U.S.C. 1001 is a CMT regardless of the defendants underlying conduct seems to establish that the new fact-based analysis only runs one way. This is arguably unconstitutional. See Wardius v. Oregon, 412 U.S. 470 (1973) (due process requires procedural rules to be even-handed in their application, striking down a state law requiring the defendant to produce discovery for the prosecution, but not vice versa). Due process also prohibits a tribunal from allowing one party to offer evidence on an issue, but precluding the other party from doing so. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) (reversing sentence because trial court excluded testimony offered by the defense under Georgia's hearsay rules, but allowed the prosecution to introduce the same evidence in a codefendant's trial); Gray v. Klauser, 282 F.3d 633, 644 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. "A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.").

Ninth Circuit

United States v. Castro, 599 F.3d 1050, 1054-1055 (9th Cir. Mar. 26, 2010) (at least under California law, an act cannot act "willfully" without also acting "knowingly" because California Penal Code 7(1) defines "willfully" as implying a purpose or willingness to commit an act, and one cannot willing commit an act without also knowing one is committing the act).
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) (Arizona conviction of driving under the influence while knowing that that one had a suspended license, in violation of Arizona Revised Statutes 28-1383(A)(1),constitutes a crime of moral turpitude for immigration purposes), deferring to Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).
Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (a criminal offense must have at least a willfullness requirement to constitute a crime of moral turpitude: "Such crimes " must be done willfully or with evil intent. " Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (quoting Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006)). The requirement of a "willful" or "evil" state of mind has long been recognized by this Court, Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993), Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962), and by other courts of appeals, see Fernandez-Ruiz, 468 F.3d at 1166 (collecting cases). The Second Circuit has observed that a "corrupt scienter is the touchstone of moral turpitude." Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000).").

Lower Courts of Ninth Circuit

Donley v. Davi, 180 Cal.App.4th 447, 459 n.4 (Dec. 2, 2009) ("We emphasize that we do not find moral turpitude in the willfulness of the act alone. " [I]t is well settled that the terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character. [Citations.] [Citation.] Willfully implies no evil intent; "it implies that the person knows what he is doing, intends to do what he is doing and is a free agent." [Citation.] [Citation.]" (People v. Bell (1996) 45 Cal.App.4th 1030, 1042-1043, 53 Cal.Rptr.2d 156.) The use of the word "willfully" in a penal statute usually defines a general criminal intent crime. (People v. Bell, supra, at p. 1043, 53 Cal.Rptr.2d 156.).").