Crimes of Moral Turpitude

(F)

Other Documents Included.  Additional documents that have been found to be part of the record of conviction include:

            (1)  Bench Trial Findings.  The United States Supreme Court has held that, in the context of a bench trial, the findings of the judge are included in the record of conviction.[1]

            (2)  Clerk’s Certificate.  A certificate of the clerk of court also may be deemed part of the conviction record.[2]

            (3)  Conduct Based Sentence Enhancements.  The law on this issue is complicated, but counsel should assume that a conduct-based sentence enhancement will be included as part of the record of conviction.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 10.56-10.60 (4th Ed. 2007).

            (4)  Jury Instructions.  The United States Supreme Court has held that jury instructions are included in the record of conviction.[3]  As with all other documents, however, these instructions may be used only to narrow the possible elements to which the defendant was found guilty.[4]

            (5)  Statement by the Court.  In some cases, the statement of the court later clarifying the nature of the proceedings may be considered in determining the nature of the offense.[5] This includes a court’s statement at sentence.[6]

            (6)  Statement of the Prosecutor.  In some cases, the statement of the prosecutor later clarifying the nature of the proceedings may be considered in determining the nature of the offense.[7]

[171] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1259 (Mar. 7, 2005) (“In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact;  in pleaded cases, they would be the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.”).

[172] Wadman v. INS, 329 F.2d 812, 813-814 (9th Cir. 1964) (receiving stolen goods).  But see Dashto v. INS, 59 F.3d 697, 701-702 (7th Cir. 1995) (reversing deportation order based on certificate of clerk of court as to criminal record).

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

[174] Ibid.  See also Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005); United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004).

[175] Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) (letters from trial judge and prosecutor, clarifying previous letter produced by respondent).  But see Velez-Lozano v. INS, 463 F.2d 1305, 150 App. D.C. 214 (D.C. Cir. 1972); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (opinion of sentencing judge irrelevant to CMT determination); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (a letter from the trial judge, giving his opinion that the offense arose out of a drunken brawl and did not involve moral turpitude, was not part of the record of conviction which the reviewing body could consider in determining the moral turpitude of the offense).

[176] Matter of Pataki, 15 I. & N. Dec. 324, 326 (BIA 1975); Matter of K, 4 I. & N. Dec. 490, 491 (BIA 1951) (immigration court may consider, as part of record of conviction in determining the nature of a conviction under a divisible statute, any statement of record made by the court in sentencing a defendant).

[177] Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) (letters from trial judge and prosecutor, clarifying previous letter produced by respondent).