In United States v. Lopez, No. 21-12709 (Aug. 7, 2023) (William Pryor, Jill Pryor, Grant), the Court, in the immigration context, held that a violation of 18 U.S.C. § 1956(a)(1)(B) is not categorically a crime of moral turpitude.
In so holding, the Court applied the categorical approach. It noted that when an individual has been convicted of a conspiracy crime–like Ms. Lopez, who was convicted of conspiracy to launder money under 18 U.S.C. § 1956(h)–the categorical approach demands that courts determine whether the underlying substantive offense is divisible if it would otherwise be overbroad. Here, the Court found § 1956(h) to be divisible by the underlying crimes a defendant could be convicted of conspiring to commit because it prohibits “conspir[ing] to commit any offense defined in [section 1956] or section 1957” of Title 18.
Here, Shepard documents clarified that Ms. Lopez was charged under § 1956(h) with conspiring to launder money in violation of sections 1956(a)(1)(B)(i) and 1957. The Court found § 1957 to be indivisible. As to § 1956(a)(1)(B), the Court cited to the Second Circuit in holding that §§ 1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii) outline two means of committing the same knowing-concealment crime. That is, they are different means of committing the same offense, not two separate offenses. In so reasoning, the Court noted that it was “express[ing] no opinion as to whether section 1956(a)(1)(A) and section 1956(a)(1)(B) outline separate offenses.”
The Court then noted that the least culpable conduct prohibited by § 1956(a)(1)(B) is structuring a transaction that involves proceeds of unlawful activity to avoid a reporting requirement. With that in mind, it held that neither § 1957 nor the least culpable conduct proscribed by § 1956(a)(1)(B) were crimes categorically involving moral turpitude.
Judge Grant “respectfully, if reluctantly” concurred, expressing frustration with the categorical approach. In her view, it “flouts the intent of Congress, requires an inordinate amount of judicial energy, and defies common sense.”