Theophile Carty v. John Ashcroft, Attorney General

395 F.3d 1081, 2005 U.S. App. LEXIS 964, 2005 WL 95730

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2005
• Docket: 03-71392
• Status: Published

Opinions

MICHAEL DALY 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 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 Revenue 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 jurisdiction. 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.

The INS thereafter commenced removal proceedings against Carty pursuant to INA § 237(a)(2)(A)(ii)² for conviction 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

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 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 information.

When a statute is divisible into several crimes, some of which may involve moral turpitude and some not, it is appropriate 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), HernandezMartinez, 329 F.3d at 1118-19. Here, Carty was convicted of “willfully and unlawfully failing] to file any return or to supply any information with intent to evade any tax imposed by this part.”

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 specifically 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 identical Section 19706. See California Jury Instructions, Criminal, 7th Ed. § 7.66 (2004).⁵

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.

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 consistently 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.

Fraud is so inextricably woven into the term willfully, as it is employed in § 145(b), that it is clearly an ingredient of the offense proscribed by that section. Only by creating unwarranted semantic distinctions could a contrary conclusion be reached.

247 F.2d at 933 (quoting Khan, 147 F.Supp. at 775). The reasoning 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 determine that intent to evade under Section 19406 is tantamount and equivalent to an intent to defraud for deportation purposes.

Moreover, the terms “evasion” and “fraud” have been treated interchangeably by California and the federal government. 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).

Just as fraud has been defined to mean intent to evade, intent to evade has generally been held to require proof of fraud.⁸

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, 163 Cal.Rptr. 566 (1980) (interpreting 26 U.S.C. § 7201). Thus, it cannot be said that willful evasion of taxes under Section 19406 does not implicitly involve fraud.

III. CONCLUSION

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.

1 . The record shows Carty made, on average, $3,000 per week from 1984 to 1996.

2 . INA § 237(a)(2)(A)(ii) states, "Any alien who at any time after admission 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 de-portable.”

3 . Carty did not raise the issue' of whether attempted bribeiy of a government official is a crime of moral turpitude below, and does not raise it on appeal.

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, 52 S.Ct. 416, 76 L.Ed. 917 (1932). Scharton only held that a statute must explicitly include an intent to defraud for the government to avail itself of the six-year statute of limitations for fraud actions. 285 U.S. at 521-22, 52 S.Ct. 416. The narrow construction 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.

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 government.” 8 F.3d at 649. While a useful guideline, Goldeshtein did not hold that such false or deceitful conduct was a necessary element in determining whether a crime involved moral turpitude.

7 . Neither the holding in Tseung Chu, that "an intent to defraud the government is a prerequisite to conviction under section 145(b) and hence, a conviction thereof where such fraud is charged in the indictment, is conviction 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 turpitude 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).