Counterfeiting and passing of counterfeit currency or obligations of the United States are generally regarded as crimes involving moral turpitude.  The BIA has announced generally that “trafficking in counterfeit goods is inherently immoral because it entails dishonest dealing and deliberate exploitation of the public and the mark owner.”[68]  The BIA also noted that, “for purposes of Federal criminal sentencing, trafficking in counterfeit goods is classified as a crime involving theft or fraud.”[69]  Moral turpitude has been found in all cases involving offenses against the government or its authority where intent to inflict economic loss on the government is an element. 

 

Tall v. Mukasey, 517 F.3d  1115 (9th Cir. Feb. 27, 2008) (California conviction for violation of Penal Code § 350(a), which punishes "[a]ny person who willfully manufactures, intentionally sells, or knowingly possesses for sale any counterfeit ... mark," is a crime involving moral turpitude);

Matter of Kochlani, 24 I. & N. Dec. 128 (BIA 2007) (federal conviction of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) [traffic in goods or services and in doing so knowingly used a spurious trademark that was likely to confuse or deceive others] is a crime involving moral turpitude; “As Congress made clear when enacting 18 U.S.C. § 2320, ‘Trademark counterfeiting . . . defrauds purchasers, who pay for brand-name quality and take home only a fake,’ but it also exploits mark holders, since ‘counterfeiters [can earn] enormous profits . . . by capitalizing on the reputations, development costs, and advertising efforts of honest manufacturers at little expense to themselves.’ S. Rep. No. 98-526, at 4-5 (1984), as reprinted in 1984 U.S.C.C.A.N. 3627, 3630-31; see also United States v. Hon, supra, at 806.”);[70]

Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. § § 371, 513(a), probably constitutes crime of moral turpitude, triggering permanent inadmissibility);

United States ex rel. Volpe v. Smith, Director of Immigration, 289 U.S. 422, 423, 53 S.Ct. 665, 666, 77 L.Ed. 1298 (1933) (counterfeiting government obligations with intent to defraud held a crime of moral turpitude);

Winestock v. INS, 576 F.2d 234 (9th Cir. 1978) (transfer and delivery of counterfeit obligations of the United States in violation of 18 U.S.C. § 473 (1982) constitutes a crime involving moral turpitude);

Lozano-Giron v. INS, 506 F.2d 1073 (7th Cir. 1974) (possessing counterfeit obligations with intent to defraud, in violation of 18 U.S.C. § 472, held a crime involving moral turpitude);

United States ex rel. Giglio v. Neelly, 208 F.2d 337, 338 (7th Cir. 1953) (convictions for violating 18 U.S.C. § 262, counterfeiting securities, and 18 U.S.C. § 88, conspiracy to do so, involve “moral turpitude”);

Schlimmgen v. Jordan, 164 F.2d 633 (7th Cir. 1947) (possession of counterfeit U.S. currency with intent to defraud);

United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) (passing counterfeit money);

Bufalino v. Irvine, 103 F.2d 830 (10th Cir. 1939) (possession and passing of counterfeit obligations of United States);

United States ex rel. Allessio v. Day, 42 F.2d 217 (2d Cir. 1930) (counterfeiting);

Matter of Castro, 19 I. & N. Dec. 692, 694 (BIA 1988);

Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980) (uttering and selling false or counterfeit paper relating to registry of noncitizens in violation of 18 U.S.C. § 1426(b) entails a deliberate deception and impairment of governmental functions, is inherently fraudulent, and is therefore a crime involving moral turpitude), overruling Matter of K, 7 I. & N. Dec. 178 (BIA 1956), in part;

Matter of Martinez, 16 I. & N. Dec. 336 (BIA 1977) (fraud was a necessary element of aiding and abetting counterfeiting);

Matter of Lethbridge, 11 I. & N. Dec. 444 (BIA 1965) (conviction of uttering a counterfeit obligation with intent to defraud in violation of 18 U.S.C. § 472 is conviction of a crime involving moral turpitude);

Matter of K, 7 I. & N. Dec. 178 (BIA 1956) (conviction of making and possessing dies or molds of U.S. coins, in violation of 18 U.S.C. § 283 (now 18 U.S.C. § 487), constitutes crime involving moral turpitude, since intent to defraud is implicit in both offenses defined by this statute);

Matter of P, 6 I. & N. Dec. 795 (BIA 1955) (conviction of publishing, uttering, and passing counterfeit Federal Reserve Notes with intent to defraud, in violation of 18 U.S.C. § 265 (now 18 U.S.C. § 472) is crime involving moral turpitude);

Matter of M, 5 I. & N. Dec. 598 (BIA 1954) (conviction of counterfeiting United States notes in violation of § 148 of the Penal Code constitutes a crime involving moral turpitude);

Matter of G, 4 I. & N. Dec. 17 (BIA 1950) (conviction by United States Military Court of putting false money into circulation (defendant gave a United States banknote which had been “raised” from one dollar to $50, to another with instruction to the latter to sell it) in violation of § § 146 and 147 of the German Criminal Code involves moral turpitude).

 

Counterfeiting coins.  Counterfeiting coins, however, has been held NOT to be a crime involving moral turpitude. 

 

United States ex rel. Giglio v. Neelly, 208 F.2d 337, 341 (7th Cir. 1953) (convictions for violating 18 U.S.C. § 282 (1946), counterfeiting nickels, held not to involve moral turpitude);

Matter of G, 2 I. & N. Dec. 235 (BIA 1945) (depositing a metal disc instead of a nickel in a subway turnstile in violation of New York Penal Law § 1293(c) held not to involve moral turpitude, since the statute violated did not require criminal intent or even knowledge on the part of the wrongdoer, overruling earlier decisions to the effect that this crime involved moral turpitude, since accidental or inadvertent use of a slug or counterfeit coin could possibly be the basis of a conviction under this statute).

 

            Copyright Infringement on the other hand, is arguably not a crime of moral turpitude.  Copyright infringement is an act that interferes with one of the exclusive rights of a copyright owner.[71]  However, the United States Supreme Court has held that copyright infringement is neither fraud, nor theft.[72]  Specifically, the Court found that copyright infringement is not a permanent or total deprivation,[73] and thus it should not be considered a CMT under well established case law indicating that intent to temporarily deprive is insufficient.[74]  The BIA seems to agree, having found that copyright infringement did not bar a noncitizen from showing good moral character.[75]

[68] Matter of Kochlani, 24 I. & N. Dec. 128, 131 (BIA 2007).

[69] Ibid.  See U.S. Sentencing Guidelines Manual § 2B5.3 (2006) (“This guideline treats copyright and trademark violations much like theft and fraud.”).

[70] The BIA acknowledged that it was possible to be convicted under 18 U.S.C. § 2320(a) without proving that the trafficker knew the act was criminal, or that the trafficker intended to defraud the potential buyer.  Nevertheless, the BIA found that the offense was inherently fraudulent, and therefore a CMT.

[71] Black’s Law Dictionary (8th ed. 2004), infringement.

[72] Dowling v. United States, 473 U.S. 207, 216-219 (1985).  Compare Hashish v. Gonzalez, 442 F.3d 572, (7th Cir. Mar. 24, 2006) (Illinois conviction for "theft of a recordable sound" under 720 ILCS 5/161, Criminal Code 38-16-1, a generic theft statute, is a CMT).

[73] Id. at 219.

[74] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-1(b)(13) (theft is a CMT only “when it involves the intention of permanent taking”); Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (conviction of  “joy-riding” in violation of Canada Criminal Code § 285(3) does not involve moral turpitude because defendant did not intend to effect a permanent taking).

[75] Matter of Kao, 23 I. & N. Dec. 45, 49 n.3 (BIA 2001).

Second Circuit

CRIMES OF MORAL TURPITUDE " COUNTERFEITING " POSSESSION OF COUNTERFEIT SECURITY
Vartelas v. Holder, 620 F.3d 108, 2010 WL 3515503 (2d Cir. Sept. 9, 2010)(federal conviction of conspiracy to make or possess a counterfeit security, in violation of 18 U.S.C. 371, 513(a), constituted a conviction of a crime of moral turpitude); citing United States ex rel. Volpe v. Smith, Director of Immigration, 289 U.S. 422, 423 (1933). CD:20.6;CMT:8.6, 9.33

Ninth Circuit

CRIMES OF MORAL TURPITUDE " COUNTERFEITING " TRADEMARK COUNTERFEITING
Rodriguez-Valencia v. Holder, ___ F.3d ___, 2011 WL 2899605 (9th Cir. Jul. 21, 2011) (per curiam) (California offense of willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark, in violation of Penal Code 350(a)(2), has intent to defraud as an element); see Tall v. Mukasey, 517 F.3d 1115, 1117, 1119-1120 (9th Cir.2008) (California Penal Code 350 is an inherently fraudulent crime.).