In re Kochlani
| Decision Date | 02 April 2007 |
| Docket Number | Interim Decision No. 3559.,File A24 911 110. |
| Parties | In re Avihail KOCHLANI, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated April 7, 2004, an Immigration Judge terminated removal proceedings against the respondent. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.
The respondent, a native and citizen of Israel and a lawful permanent resident of the United States, has two criminal convictions that are of relevance to the present proceedings: (1) an October 1987 conviction in California Superior Court for the offense of grand theft in violation of section 487.1 of the California Penal Code; and (2) a December 2001 conviction in a United States District Court in California for the offense of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320 (2000).2 On the basis of these convictions, the DHS charged the respondent with removability from the United States as, inter alia, an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. See section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000). The Immigration Judge terminated the removal proceedings, however, based on her conclusion that the offense of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320 was not a crime involving moral turpitude that could support a charge under section 237(a)(2)(A)(ii) of the Act.3
As a threshold matter, there is no dispute that the California offense of grand theft is a crime involving moral turpitude. Crimes involving theft or larceny have always been held to involve moral turpitude. United States v. Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999); Matter of De La Nues, 18 I&N Dec. 140, 145 (BIA 1981). Thus, the sole question to be resolved on appeal is whether the Federal offense of trafficking in counterfeit goods is a crime involving moral turpitude.
We have held that a criminal offense involves "moral turpitude" if the relevant statute defines the offense in such a manner that it necessarily entails conduct on the part of the offender that is inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general. Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001). Neither the seriousness of a criminal offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. Id. at 84.
As previously noted, the respondent was convicted of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320, which provides in pertinent part as follows:
Whoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services shall . . . be fined not more than $2,000,000 or imprisoned not more than 10 years, or both . . . .
18 U.S.C. § 2320(a). The phrase "counterfeit mark" is defined as
a spurious mark—
(i) that is used in connection with trafficking in goods or services (ii) that is identical with, or substantially indistinguishable from, a mark registered for those goods or services on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered; and
(iii) the use of which is likely to cause confusion, to cause mistake, or to deceive.
18 U.S.C. § 2320(e)(1)(A). 4 Thus, to have convicted the respondent under 18 U.S.C. § 2320, the Federal prosecutor necessarily proved beyond a reasonable doubt that he intentionally trafficked or attempted to traffic in goods or services and that in the course of doing so, he knowingly used a spurious trademark that was likely to confuse or deceive others.
In concluding that trafficking in counterfeit goods does not necessarily involve moral turpitude, the Immigration Judge observed that an individual may be convicted under 18 U.S.C. § 2320(a) even if the direct purchaser of the merchandise was not, in fact, confused or deceived as to the authenticity of the goods at the time of purchase. Indeed, to obtain a conviction under 18 U.S.C. § 2320(a), the prosecutor need not prove either that the individual knew that trafficking in counterfeit goods was criminal or that the trafficker specifically intended to defraud the direct purchaser or potential purchaser of the goods being trafficked. United States v. Gantos, 817 F.2d 41 (8th Cir. 1987); United States v. Baker, 807 F.2d 427 (5th Cir. 1986). Yet, in our view, this fact does not support the Immigration Judge's apparent conclusion that trafficking in counterfeit goods may be committed by morally neutral means. On the contrary, courts espousing the notion that 18 U.S.C. § 2320(a) may be violated without proof of a specific intent to deceive the direct purchaser have taken pains to emphasize that the offender's knowing expropriation and use of the owner's trademark must nonetheless be likely to confuse or deceive the public at large, with significant adverse consequences, both for those potential consumers who are deceived and for the owner of the mark, who must bear the costs associated with the dilution of the mark's value in the public's estimation. See, e.g., United States v. Foote, 413 F.3d 1240, 1245-46 (10th Cir. 2005); United States v. Hon, 904 F.2d 803, 806-07 (2d Cir. 1990); United States v. Yamin, 868 F.2d 130, 132-33 (5th Cir. 1989); United States v. Gantos, supra, at 43; United States v. Torkington, 812 F.2d 1347, 1352 (11th Cir. 1987).
It is true that crimes that have a specific intent to defraud as an element have always been found to involve moral turpitude, but we have also found that certain crimes are inherently fraudulent and involve moral turpitude even though they can be committed without a specific intent to defraud. Matter of Tejwani, 24 I&N Dec. 97, 98 (BIA 2007) (citing Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005); Matter of Flores, 17 I&N Dec. 225 (BIA 1980)). For instance, in Matter of Flores, supra, we concluded that moral turpitude inhered in the crime of uttering or selling false or counterfeit paper relating to the registry of aliens in violation of 18 U.S.C. § 1426(b), even though the statute did not require proof of a specific intent to defraud. In reaching this conclusion, we noted that 18 U.S.C. § 1426(b) requires knowledge on the part of the offender that the documents being sold were counterfeit, and we found that the act of selling counterfeit documents, like the act of counterfeiting currency, involved deliberate deception and interfered with the Government's ability to function. Id. at 228-30.
The offense of trafficking in counterfeit goods or services, as defined in 18 U.S.C. § 2320, is in many ways analogous to the offense of uttering or selling false or counterfeit papers relating to the registry of aliens under 18 U.S.C. § 1426(b). First, both crimes involve traffic in...
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