In a decision released last week, the Ninth Circuit Court of Appeals held that a conviction for credit card fraud, Cal. Penal Code § 532a(1), is a crime involving moral turpitude. Tijani v. Holder, No. 05-70195, slip op. (9th Cir. March 11, 2010) (Noonan, Tashima, Callahan). Judge Noonan wrote the opinion for the panel. Judges Tashima and Callahan each wrote separate opinions concurring in part and dissenting in part. Judges Noonan and Callahan concluded that credit card fraud is a CIMT; Judge Tashima dissented on this issue.
As stated by Noonan, the California credit card fraud statute provides:
Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of either himself or such person, firm or corporation shall be guilty of a public offense. Tijani, No. 05-70195, slip op. at 4075 (quoting Cal. Penal Code § 532a(1)).
In determining whether credit card fraud is a CIMT, Noonan used the categorical approach—that is, “whether the ‘full range of conduct’ proscribed by Cal. Penal Code § 532a(1) meets the definition of a crime involving moral turpitude….” Tijani, No. 05-70195, slip op. at 4074-75 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir. 2008)). Under the categorical
inquiry, “any conviction under the California statute involves fraud….” Tijani, No. 05-70195, slip op. at 4076. “Fraud is implicit in the nature of a crime under section 532a(1)…. A crime under § 532a(1) is committed only when a person by a knowing falsehood obtains property, money, or credit. The fraudster intentionally seeks and obtains something of value by means of his misrepresentation.” Tijani, No. 05-70195, slip op. at 4076 (internal citations omitted).
In reaching this conclusion Noonan explicitly disagreed with the BIA’s holding in Matter of Kinney that an intent to have someone rely on a false statement is not necessary enough to constitute a CIMT because “one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain.” Tijani, No. 05-70195, slip op. at 4076 (quoting Matter of Kinney, 10 I&N Dec. 548 (1964) (concerning a Connecticut statute)).
Despite having concluded that credit card fraud under Cal. Penal Code § 532a(1) categorically constitutes a CIMT, Noonan nonetheless analyzed the conviction under a modified categorical approach. Tijani, No. 05-70195, slip op. at 4077. Under the modified categorical approach, “’We look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.’” Tijani, No. 05-70195, slip op. at 4075 (quoting Nicanor-Romero, 523 F.3d at 1007).
According to Noonan, credit card fraud inflicts an injury on a victim at the moment that the fraudster gets something, including credit, based on a fraudulent statement or act: “In a word, to induce a creditor into a risky contract through misrepresentation, on terms to which the creditor would not have agreed if he had not been duped, is to commit fraud on the creditor. Precisely this type of conduct is prohibited under § 532a(1).” Tijani, No. 05-70195, slip op. at 4078.
This fraud is repeated when the fraudster obtains a tangible good using a credit card that was itself fraudulently obtained. “The seller of the goods is now the victim,” Noon explains. “The seller parts with property in return for a representation of credit to which the fraudster has no right. The harm is tangible and immediate.” Tijani, No. 05-70195, slip op. at 4078-79. It is irrelevant, according to Noonan, that the fraudster intends to repay either of these victims—the credit card company or the merchant. Since the record of conviction indicated that Tijani did all these, Noonan concluded that Tijani’s conviction constituted a CIMT under the modified categorical approach in addition to the categorical approach.