Carty v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEOPHILE CARTY,  No. 03-71392
Petitioner,
v.  Agency No.
A34-703-092
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 4, 2004—San Francisco, California
Filed January 19, 2005
Before: William C. Canby, Jr., Pamela Ann Rymer, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins;
Dissent by Judge Canby
783
CARTY v. ASHCROFT 785
COUNSEL
Matthew G. Ball (briefed and argued), Kirkpatrick & Lock-
hart, San Francisco, California, for the petitioner.
Edward C. Durant (argued) and David E. Dauenheimer
(briefed), Office of Immigration Litigation, Department of
Justice, Washington, D.C., for the respondent.
OPINION
HAWKINS, Circuit Judge:
We must decide whether “intent to evade” is synonymous
with “intent to defraud” within the meaning of the removal
provisions of the Immigration and Nationality Act (“INA”).
Because we conclude the terms are synonymous, we dismiss
786 CARTY v. ASHCROFT
the petition for review of Dr. Theophile Carty (“Carty”).
Carty, a native of Anguilla, petitioned this court for relief
from a Board of Immigration Appeals’ (“BIA”) decision
affirming an Immigration Judge’s (“IJ”) determination that
willful failure to file state income taxes under California Rev-
enue and Taxation Code § 19406 (1992) (“Section 19406”) is
a crime involving moral turpitude, thereby subjecting Carty to
removal pursuant to INA § 237(a)(2)(A)(ii) for conviction of
two or more crimes involving moral turpitude.
While we generally do not have jurisdiction to consider
challenges to removal orders brought by aliens removable
pursuant to INA § 237(a)(2)(A)(ii), see 8 U.S.C.
§ 1252(a)(2)(C), we can determine whether we have jurisdic-
tion. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th
Cir. 2003). As part of this jurisdictional inquiry, we may
examine whether Section 19406 tax evasion constitutes a
crime of moral turpitude. Hernandez-Martinez v. Ashcroft,
329 F.3d 1117, 1118 (9th Cir. 2003).
I. BACKGROUND
Carty immigrated to the United States in 1965 and became
a lawful permanent resident in 1975. Working as a licensed
physician in Los Angeles, Carty made a comfortable and, it
turns out, largely unreported income.1 The State of California
charged Carty with the willful failure to file a state income tax
return in 1991 and 1992, in violation of Section 19406. Carty
pled nolo contendere to both counts, and was sentenced to
ninety days house arrest, payment of all past taxes due, and
probation for three years. In 2001, Carty pled guilty to
attempted bribery of a government official, admitting that he
offered money to obtain a U.S. passport for a non-citizen. He
was sentenced to eighteen months imprisonment and three
years probation.
1
The record shows Carty made, on average, $3,000 per week from 1984
to 1996.
CARTY v. ASHCROFT 787
The INS thereafter commenced removal proceedings
against Carty pursuant to INA § 237(a)(2)(A)(ii)2 for convic-
tion of two or more crimes involving moral turpitude. In the
face of Carty’s argument that failure to file a tax return is not
a crime involving moral turpitude,3 the IJ ruled that Carty’s
willful failure to file a return with the intent to evade taxes
constitutes a crime involving moral turpitude. The BIA
affirmed, specifically concurring with the IJ’s moral turpitude
determination.
II. DISCUSSION
[1] Whether a state statutory crime necessarily involves
moral turpitude is a question of law, subject to de novo
review. Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9th
Cir. 1995). Crimes of moral turpitude are of basically two
types, those involving fraud and those involving grave acts of
baseness or depravity. Rodriguez-Herrera, 52 F.3d at 240. For
analytical purposes, tax evasion falls within the first category.
Section 19406 provided in pertinent part:
Any person who . . . willfully fails to file any return
or to supply any information with intent to evade any
tax imposed by this part, or who, willfully and with
like intent, makes, renders, signs, or verifies any
false or fraudulent return or statement or supplies
2
INA § 237(a)(2)(A)(ii) states, “Any alien who at any time after admis-
sion is convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct, regardless of
whether confined therefor and regardless of whether the convictions were
in a single trial, is deportable.”
3
Carty did not raise the issue of whether attempted bribery of a govern-
ment official is a crime of moral turpitude below, and does not raise it on
appeal.
788 CARTY v. ASHCROFT
any false or fraudulent information, is punishable
. . . .4
Section 19406 is a divisible statute, constituting (1) willful
failure to file a return or to supply information with the intent
to evade taxes, and (2) willful making of a false or fraudulent
return or statement or supplying any false or fraudulent infor-
mation.
When a statute is divisible into several crimes, some of
which may involve moral turpitude and some not, it is appro-
priate to examine the “record of conviction” to determine
which part applies to the defendant. See Wadman v. INS, 329
F.2d 812, 814 (9th Cir. 1964), Hernandez-Martinez, 329 F.3d
at 1118-19. Here, Carty was convicted of “willfully and
unlawfully fail[ing] to file any return or to supply any infor-
mation with intent to evade any tax imposed by this part.”
[2] To involve moral turpitude, intent to defraud must be an
“essential element” of Carty’s conviction. See Goldeshtein, 8
F.3d 645, 647 (9th Cir. 1993). Looking to the language of
Section 19406, the willful failure to file section does not spe-
cifically list intent to defraud as an element, nor is it alleged
in Carty’s indictment. However, Section 19406 does list intent
to evade taxes as an element, and the government must prove
“specific intent to evade a tax” under the substantially identi-
cal Section 19706. See California Jury Instructions, Criminal,
7th Ed. § 7.66 (2004).5
4
The California legislature repealed Section 19406 in 1994 and replaced
it with a substantially identical Section 19706. See Cal. Rev. & Tax. Code
§ 19706 (2004).
5
Carty argues that intent to evade taxes is not necessarily the same as
intent to defraud the government, citing United States v. Scharton, 285
U.S. 518 (1932). Scharton only held that a statute must explicitly include
an intent to defraud for the government to avail itself of the six-year stat-
ute of limitations for fraud actions. 285 U.S. at 521-22. The narrow con-
struction applied to statute of limitations issues led to a holding that an
income tax statute requiring willful attempt to evade or defeat taxes does
not fall within the fraud exception. Id.
CARTY v. ASHCROFT 789
[3] We have held that “[e]ven if intent to defraud is not
explicit in the statutory definition, a crime nevertheless may
involve moral turpitude if such intent is ‘implicit in the nature
of the crime.’ ” Goldeshtein, 8 F.3d at 648 (quoting Winestock
v. INS, 576 F.2d 234, 235 (9th Cir. 1978)).6 Intent to defraud
is implicit in willfully failing to file a tax return with the
intent to evade taxes. Unlike Goldeshtein, where the court
found that willfully structuring transactions did not inherently
involve fraud because it only deprived the government of
information and did not obtain anything from the government,
id. at 649, here Carty deprived state government of more than
mere information. By willfully failing to file his tax returns,
he attempted to deprive the government of revenue — or, in
other words, to obtain a free pass on taxes.
[4] The closest analog to Section 19406 is 18 U.S.C.
§ 145(b) (1939), which prohibits the willful attempt “in any
manner to evade or defeat any tax.” See Khan v. Barber, 147
F. Supp. 771, 775 n.2 (N.D. Cal. 1957), aff’d, Khan v. Barber,
253 F.2d 547 (9th Cir. 1958). Khan held that § 145(b) is a
crime of moral turpitude, 253 F.2d at 549, as did Tseung Chu
v. Cornell, 247 F.2d 929, 934 (9th Cir. 1957). Courts had con-
sistently interpreted tax evasion under § 145(b) as requiring
“an intent to defraud the government.” Khan, 253 F.2d at 549.
As Tseung Chu explained,
[T]he Courts have, with apparent unanimity, held
that in order for a conviction under § 145(b) to stand,
the government is required to prove that the evading
taxpayer had a specific intent to evade taxation
amounting to an intent to defraud the United States.
6
Goldeshtein, in distinguishing Matter of Flores, 17 I. & N. Dec. 225
(BIA 1980), and other cases on which the government relied, noted that
structuring financial transactions does not involve “some false or deceitful
conduct through which the alien obtained something from the govern-
ment.” 8 F.3d at 649. While a useful guideline, Goldeshtein did not hold
that such false or deceitful conduct was a necessary element in determin-
ing whether a crime involved moral turpitude.
790 CARTY v. ASHCROFT
Fraud is so inextricably woven into the term will-
fully, as it is employed in § 145(b), that it is clearly
an ingredient of the offense proscribed by that sec-
tion. Only by creating unwarranted semantic distinc-
tions could a contrary conclusion be reached.
247 F.2d at 933 (quoting Khan, 147 F. Supp. at 775). The rea-
soning of Khan and Tseung Chu — that fraud is clearly an
ingredient of § 145(b) — applies with equal force to Section
19406’s intent to evade requirement.7 This leads us to deter-
mine that intent to evade under Section 19406 is tantamount
and equivalent to an intent to defraud for deportation pur-
poses.
Moreover, the terms “evasion” and “fraud” have been
treated interchangeably by California and the federal govern-
ment. In California, the penalty for tax “fraud or intent to
evade” is the same. Cal. Rev. & Tax. Code § 6485. Similarly,
the federal tax fraud penalty statute, while not specifically
denoting “intent to evade,” requires proof that “the taxpayer
has engaged in conduct with the intent to evade taxes that he
knew or believed to be owing.” United States v. Walton, 909
F.2d 915, 926 (9th Cir. 1990); 26 U.S.C. § 6653(b).
[5] Just as fraud has been defined to mean intent to evade,
intent to evade has generally been held to require proof of fraud.8
7
Neither the holding in Tseung Chu, that “an intent to defraud the gov-
ernment is a prerequisite to conviction under section 145(b) and hence, a
conviction thereof where such fraud is charged in the indictment, is con-
viction of a crime involving moral turpitude,” 247 F.2d at 936, nor the
identically worded holding in Khan, 253 F.2d at 549, suggest that charging
fraud in the indictment is the only situation in which moral turpitude may
be found. As we said in Goldeshtein, another situation in which moral tur-
pitude may be found is when fraud is implicit in the nature of the crime.
8 F.3d at 648.
8
The willful failure to file section of Section 19406 does not require
proof of fraud. See California Jury Instructions, Criminal, 7th Ed. § 7.66
(2004) (enumerating elements of substantially identical Cal. Rev. & Tax.
Code § 19706).
CARTY v. ASHCROFT 791
Federal tax statutes with an “intent to evade” element, and no
specific fraud requirement, have still been interpreted as
requiring an intent to defraud. See Tseung Chu, 247 F.2d at
933 (interpreting 18 U.S.C. § 145(b)); Windham v. Bd. of
Med. Quality Assurance, 104 Cal. App. 3d 461, 469 (1980)
(interpreting 26 U.S.C. § 7201). Thus, it cannot be said that
willful evasion of taxes under Section 19406 does not implic-
itly involve fraud.
III. CONCLUSION
[6] Having determined that willful failure to file a tax
return, with the intent to evade taxes, involves fraud, and thus
constitutes a crime of moral turpitude, we dismiss the petition
for lack of jurisdiction.
DISMISSED.
CANBY, Circuit Judge, dissenting:
As a matter of first impression, I would be willing to accept
the majority’s position that willful failure to file a tax return
with intent to evade a tax is necessarily a crime of moral tur-
pitude. It is not a matter of first impression, however, and in
my view our precedent requires a contrary result.
In Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), we
addressed the question whether a violation of 26 U.S.C.
§ 145(b) was a crime of moral turpitude. Section 145(b), as it
then existed, proscribed willful attempts to evade a tax. We
held that a violation of section 145(b) was a crime of moral
turpitude, but we did not arrive at that conclusion from the
face of the statute itself or from the mere fact of conviction.
We relied on earlier case law holding that proof of fraud was
required to sustain a conviction under section 145(b). We then
said of Tseung Chu:
792 CARTY v. ASHCROFT
He was here charged with making in each of four
years “a false and fraudulent income tax return.”
Fraud may not be an essential element of the crime
of wilful attempt to defeat or evade the income tax,
but it can be an essential part of that crime. Here
fraud was charged as part and parcel of the crime,
and to that crime so involving appellant’s alleged
fraudulent acts, appellant plead nolo.
Id. at 935 (internal citation omitted). Thus in Tseung Chu we
relied on a specific allegation of fraud in order to arrive at the
conclusion that the crime involved moral turpitude. There was
no such allegation in Carty’s conviction; he pleaded nolo con-
tendere to two counts alleging only that he “did willfully and
unlawfully fail to file any return or to supply any information
with intent to evade any tax imposed by this part.”1 Tseung
Chu’s reasoning makes it clear that such an allegation is not
enough to establish moral turpitude.
Indeed, Tseung Chu elsewhere makes the point even more
specifically than it did in the passage I have quoted above.
Anticipating this court’s adverse approach, Tseung Chu had
managed to have his earlier conviction modified, so that the
judgment’s description of the charge no longer referred to
“false and fraudulent income tax returns,” but only to “wilful
attempts to evade or defeat an income tax.” We responded to
that maneuver as follows:
The “order correcting clerical error in Judgement”
eliminating the description of the offense charged as
“making false and fraudulent income tax returns”
may technically take the judgment out of Class One
[“crimes necessarily involving moral turpitude”]
described by Judge Chambers in the Twentieth
1
As the majority opinion here notes, California does not require proof
of fraud for conviction on this charge. Majority opinion, supra, note 8.
CARTY v. ASHCROFT 793
Century-Fox Film classifications, but it does not take
the crime as charged out of Class One.
Id. (emphasis in original). Finally, we summed up our deci-
sion as follows:
We follow the rule laid down in the De George case
supra, and Bloch v. United States, 1955, supra, that
an intent to defraud the government is a prerequisite
to conviction under section 145(b) and hence, a con-
viction thereof where such fraud is charged in the
indictment, is conviction of a crime involving moral
turpitude.
Id. at 936 (emphasis added).
We reiterated the rationale of Tseung Chu in Khan v. Bar-
ber, 253 F.2d 547 (9th Cir. 1958). In that appeal, the first
question presented was whether a conviction for violating sec-
tion 145(b) involved moral turpitude. We stated:
This court has already answered the first question
affirmatively where, as here, intent to defraud the
government is charged in the indictment and found
by the jury.
Id. at 549 (emphasis added). A quotation from Tseung Chu
immediately followed.
In my view, the rationale of Tseung Chu, reaffirmed in
Khan, is fatally inconsistent with any notion that the bare
crime of failing to file a tax return with intent to evade taxes
is ipso facto a crime of moral turpitude. If intent to evade
were sufficient to establish moral turpitude, there would have
been no need for us to examine the indictments in Tseung Chu
and Khan to make certain that they charged fraud. The
charges to which Carty pleaded nolo contendere included no
such allegation.
794 CARTY v. ASHCROFT
We did not diverge from the rationale of Tseung Chu in our
later decision of Goldeshtein v. INS, 8 F.3d 645 (9th Cir.
1993), discussed in the majority opinion here. In Goldeshtein
we held that the crime of structuring financial transactions in
order to avoid currency reports was not a crime of moral tur-
pitude. It is true that we based our decision in Goldeshtein
partly on the ground that nothing had been taken from the
government, but we also based our decision on the absence of
fraud or deception. We pointed out that all of the cases upon
which the government relied involved “some false or deceit-
ful conduct through which the alien obtained something from
the government.” Id. at 649 (emphasis added). We then held
that Goldeshtein’s crime did not share this necessary charac-
teristic for a crime of moral turpitude:
The offense of structuring financial transactions to
avoid currency reports, in contrast, does not involve
the use of false statements or counterfeit documents,
nor does the defendant obtain anything from the gov-
ernment.
Id. at 649 (emphasis added).
Finally, I note the implications of the Supreme Court’s
decision in United States v. Scharton, 285 U.S. 518 (1932),
which held that the longer, six-year statute of limitations for
“offenses involving the defrauding or attempting to defraud
the United States” did not apply to a conviction for willfully
attempting to evade payment of taxes. It is true, as the major-
ity opinion here recites, that Scharton’s result depended in
part on a strict standard of construction applicable to the
extended limitations provision. Nevertheless, Scharton
expressly rejected the arguments presented by the government
that “fraud is implicit in the concept of evading or defeating”
and that “[a]ny attempt to defeat or evade a tax is said to be
tantamount to and to possess every element of an attempt to
defraud the taxing body.” Id. at 520-21. Although I agree with
the majority that Scharton is sufficiently distinguishable that
CARTY v. ASHCROFT 795
it does not directly control the outcome of Carty’s case,
Scharton certainly leans in the same direction as Tseung Chu.
For these reasons, I respectfully dissent from the majority’s
opinion. I would grant the petition for review and reverse the
decision of the BIA.