Cite as
24 I&N Dec. 128 (BIA 2007) Interim Decision #3559
In re Avihail KOCHLANI, Respondent
File A24 911 110 - Los Angeles
Decided as amended April 2, 20071
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of trafficking in counterfeit goods or services in violation of 18 U.S.C.
§ 2320 (2000) is a crime involving moral turpitude.
FOR RESPONDENT: Robert G. Berke, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: JoAnn M. Platel, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
COLE, Board Member:
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.
I. FACTUAL AND PROCEDURAL HISTORY
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
1
On our own motion, we amend the November 23, 2005, order in this case. The amended
order makes editorial changes consistent with our designation of the case as a precedent.
2
With respect to the Federal conviction, the respondent was prosecuted as a principal based
on the fact that he aided and abetted trafficking in counterfeit goods and caused acts
constituting the offense of trafficking in counterfeit goods to be done. See
18 U.S.C.
§ 2 (2000).
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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
II. ANALYSIS
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;
3
In terminating the removal proceedings, the Immigration Judge also concluded that the
respondent was not convicted of an aggravated felony as charged by the DHS. The present
appeal does not challenge the Immigration Judge’s decision with respect to the validity of
the aggravated felony charge, so that issue is not before us.
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(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
(l0th 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
4
The phrase “counterfeit mark” is defined in the alternative as “a spurious designation that
is identical with, or substantially indistinguishable from, a designation as to which the
remedies of the Lanham Act are made available by reason of section 220506 of title 36.”
18 U.S.C.A. § 2320(e)(1)(B) (West Supp. 2006). This portion of the “counterfeit mark”
definition pertains solely to the exclusive rights of the United States Olympic Committee
to use certain names and emblems associated with the Olympic Games, the Paralympic
Games, and the Pan-American Games and is of no relevance to these proceedings.
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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 counterfeit or
fraudulent items or objects. Second, both crimes require proof of an intent to
traffic and knowledge that the items or objects are counterfeit. And third,
both crimes result in significant societal harm. As Congress made clear when
enacting
18 U.S.C. § 2320, “Trademark counterfeiting . . . defrauds
purchasers, who pay for brand-name quality and take home only a fake,” but
it also exploits mark holders, since “counterfeiters [can earn] enormous
profits . . . by capitalizing on the reputations, development costs, and
advertising efforts of honest manufacturers at little expense to themselves.”
S. Rep. No. 98-526, at 4-5 (1984), as reprinted in 1984 U.S.C.C.A.N. 3627,
3630-31; see also United States v.
Hon, supra, at 806.
Trafficking in counterfeit goods is “tantamount to commercial forgery” and
involves the theft of someone else’s property in the form of a trademark, even
if it does not involve deceiving the purchasers of the counterfeit goods and
services. David J. Goldstone & Peter J. Toren, The Criminalization of
Trademark Counterfeiting,
31 Conn. L. Rev. 1, 4 (Fall 1998). Indeed,
trafficking in counterfeit goods is inherently immoral because it entails
dishonest dealing and deliberate exploitation of the public and the mark
owner. Id. at 22 (noting that “[u]sing the good name of another without
authorization to bolster the value of one’s own work is a moral wrong that
violates social norms”). Moreover, we deem it significant that for purposes
of Federal criminal sentencing, trafficking in counterfeit goods is classified
as a crime involving theft or fraud. See U.S. Sentencing Guidelines Manual
§ 2B5.3 & cmt. background (2006) (“This guideline treats copyright and
trademark violations much like theft and fraud.”).
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III. CONCLUSION
In conclusion, we agree with the DHS that the Immigration Judge erred
when she concluded that the offense of trafficking in counterfeit goods or
services under 18 U.S.C. § 2320 does not qualify as a crime involving moral
turpitude under the immigration laws. Because we find that the respondent’s
removability under section 237(a)(2)(A)(ii) of the Act has been established,
we will sustain the DHS’s appeal and remand the record to the Immigration
Judge for further proceedings to consider whether the respondent is eligible
for any relief from removal.
ORDER: The appeal of the Department of Homeland Security is
sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated
in part, and the record is remanded for further proceedings consistent with the
foregoing opinion.
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