Crimes of Moral Turpitude

(B)

Guilty as Charged.[1]  The nature of the conviction is limited to the elements of the offense to which a plea was entered or of which the jury verdict convicted the defendant.  In Taylor, the court stated that the reviewing courts would generally be limited only to a strict categorical approach, but could look beyond the mere fact of the conviction “in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.  For example, in a state whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction . . . .”[2]  In the situation the court describes, “entry of a building” was not strictly necessary in order to punish the defendant under the statute; however, the charges and jury instructions compelled the jury to find beyond a reasonable doubt that the defendant had entered a building in order to convict.  When looking beyond the statute of conviction into the record of conviction, this is just the type of information a reviewing court would hope to obtain, because it shows the exact set of elements of which the defendant was found guilty.

In United States v. Calderon-Pena,[3] the Fifth Circuit found that the Texas child endangerment conviction was not a crime of violence because the statute could be committed though an “act or omission” and did not necessarily require the “use of force.”  The charging document stated that the defendant had committed the offense “by striking a motor vehicle occupied by the Complainant with the Defendant’s motor vehicle.”[4]  The government argued that this language in the charge necessarily meant that Calderon-Pena had been convicted of a crime of violence.  In rejecting this argument, the court pointed out that “the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense, but rather satisfies the due process concerns relating to providing defendants with sufficient notice of the crime for which they have been charged.”[5]  The court also gave another example:

[S]uppose that an indictment charged a defendant with the crime of disturbing the peace (or even the crime of littering) and also specified that he committed the crime “by throwing a bottle at the victim’s head.” Under state law, the prosecution might be required to prove that the defendant indeed engaged in that charged conduct, but throwing a bottle at someone is not an element of the disturbing-the-peace statute (or of littering). It is, rather, one manner of violating the statute.[6]

While it could be argued that the language charging Calderon-Pena could have been used to determine whether he had pleaded guilty to a commission of the offense by an “act” rather than an “omission,” the court found that the statute has no element (or set of elements) requiring “use” of force.  The statute in question required that the defendant knowingly create a danger of bodily injury.  “As a matter of simple logic, the endangerment statute can—but need not—involve the application of physical force to the child’s person.”[7]  Therefore, applying the minimum conduct rule, the offense could not be found to be a categorical crime of violence. 

            The courts are, unfortunately, not consistent in following this rule.[8]  Occasionally, the courts have also ventured outside the “record of conviction,” in favor of the noncitizen, to consider extenuating circumstances in determining that a crime did not involve moral turpitude.[9] 

[108] See also § 7.11(A), infra, for more discussion of this topic.

[109] United States v. Taylor, 495 U.S. 575, 602 (1990).

[110] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (court can look to charging papers for the limited purpose of determining which set of a series of disjunctive elements in the statute the defendant’s conviction satisfied).

[111] Id. at 256.

[112] Id. at 258.

[113] Id. at 257 n.4.

[114] Id. at 260.

[115] See, e.g., Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (solicitation of a sexual act was sexual abuse of a minor where charge indicated victim was minor, even though age of victim is not an element of the statute of conviction).  For more discussion, see N. Tooby & J. Rollin, Criminal Defense of Immigrants, Chapter 16 (4th Ed. 2007).

[116] E.g., Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.N.Y. 1958); Chiaramonte v. INS, 626 F.2d 1093, 1097-1098 (2d Cir. 1980) (theft in postwar Italy not due to “conditions of such surpassing privation that the theft of essentials was necessarily free from moral taint”).  But see Zgodda v. Holland, 184 F.Supp 847 (D.Pa. 1960) (court “regretted” that it was not free to go behind the noncitizen’s larceny conviction to consider possible extenuating factors, since the defendant had been convicted as a young girl in Bremen, Germany, in 1944, of simple larceny for stealing a small sum of money and a few articles of clothing, when Bremen was under severe air attack and when the population was living largely underground, the offense was motivated by privation, and the conviction was expunged from the record under German law in 1954, none of which, the court held, could relieve her of the immigration effect of the conviction).