United States v. Santacruz ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-55470
Plaintiff-Appellee,
v.  D.C. No.
CV-05-07633-DDP
JUAN ANDRES SANTACRUZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
February 10, 2009—Pasadena, California
Filed April 20, 2009
Before: Andrew J. Kleinfeld, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
4557
UNITED STATES v. SANTACRUZ 4559
COUNSEL
Robert G. Berke, Esq., Berke Law Offices, Los Angeles, Cali-
fornia, for the appellant.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Anh-Thu P. Mai, Senior Litigation Counsel, The-
resa M. Healy, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Los Angeles, Cal-
ifornia, for the appellee.
OPINION
PER CURIAM:
Juan Andres Santacruz, a native of Mexico and a natural-
ized United States citizen, appeals the district court’s grant of
partial summary judgment1 to the government, which sought
to revoke Santacruz’s naturalization because he had been con-
victed of a crime involving moral turpitude—i.e., possession
1
We ordinarily lack jurisdiction over grants of partial summary judg-
ment because “they do not dispose of all claims.” See Cheng v. Comm’r,
878 F.2d 306, 309 (9th Cir. 1989). We have jurisdiction here, however,
because the district court’s “Order Granting Plaintiff’s Motion for Partial
Summary Judgment” completely disposed of the case and ended the litiga-
tion by granting the government all the relief it sought. In fact, the judg-
ment has already been executed—Santacruz has tendered his passport and
naturalization certificate to the Department of Homeland Security. There-
fore, while labeled a grant of partial summary judgment, the district
court’s order in this case is in fact a final decision over which we have
jurisdiction pursuant to 28 U.S.C. § 1291.
4560 UNITED STATES v. SANTACRUZ
of child pornography under 18 U.S.C. § 2252A(a)(5)(B)2 —in
the five years immediately preceding the filing of his natural-
ization application. We are called upon to determine whether
possession of child pornography is a crime involving moral
turpitude. We hold that it is, and we affirm the district court’s
order.
I.
In early 2000, U.S. Customs Service officers found sixty-
three nude or sexually explicit images of minors on San-
tacruz’s personal computer. On July 30, 2001, Santacruz
pleaded guilty to possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B).
In 1999, Santacruz had been convicted of trespassing. He
applied for naturalization on March 2, 2001, and stated in his
application, without elaboration, that he had been convicted of
“breaking the law.” On August 3, 2001—four days after
pleading guilty to possessing child pornography—Santacruz,
under oath, told Immigration & Naturalization Service Officer
Loy Fruel that his only conviction was the 1999 trespassing
conviction. Fruel approved Santacruz’s application, and San-
tacruz was naturalized on August 17, 2001.
On October 25, 2005, the government filed a complaint to
revoke Santacruz’s naturalization as illegally procured. The
government alleged that, during the five years before he
2
“Any person who . . . knowingly possesses, or knowingly accesses
with intent to view, any book, magazine, periodical, film, videotape, com-
puter disk, or any other material that contains an image of child pornogra-
phy that has been mailed, or shipped or transported using any means or
facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means, including by computer, or that was pro-
duced using materials that have been mailed, or shipped or transported in
or affecting interstate or foreign commerce by any means, including by
computer . . . shall be punished as provided in subsection (b).” 18 U.S.C.
§ 2252A(a)(5)(B).
UNITED STATES v. SANTACRUZ 4561
applied for naturalization, Santacruz was not a “person of
good moral character.” See 8 U.S.C. § 1427(a). The govern-
ment asserted three counts: (1) Santacruz had committed a
“crime involving moral turpitude”—i.e., possession of child
pornography—during the five-year period; (2) Santacruz pro-
vided false testimony under oath to Fruel; and (3) Santacruz
willfully misrepresented his criminal history in his naturaliza-
tion application, as amended by his testimony to Fruel. The
government sought a judgment revoking Santacruz’s citizen-
ship and requiring Santacruz to surrender all indicia of citi-
zenship to the Department of Homeland Security.
The government moved for summary judgment on Counts
1 and 3 only. On February 2, 2007, the district court granted
the government’s motion with respect to Count 1, holding
that, as a matter of law, possession of child pornography is a
crime involving moral turpitude. Because the district court’s
grant of summary judgment on Count 1 resulted in full relief
the government sought—the revocation of Santacruz’s
citizenship—the district court never reached Counts 2 or 3.
Santacruz timely appealed.
II.
Santacruz contends that possession of child pornography is
not a crime involving moral turpitude because 18 U.S.C.
§ 2252A(a)(5)(B) does not require specific intent.
[1] Whether possession of child pornography is a crime
involving moral turpitude is an issue of first impression in this
circuit.3 Under Navarro-Lopez v. Gonzales, 503 F.3d 1062,
3
In fact, no federal case has decided whether possession of child por-
nography is a crime involving moral turpitude. Three state cases have
found possession of child pornography to be morally turpitudinous. See
Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek, 739 N.W.2d 67,
69 (Iowa 2007); Chapman v. Gooden, 974 So. 2d 972, 977 (Ala. 2007);
cf. In re Wolff, 490 A.2d 1118, 1120 (D.C. Ct. App. 1985), vacated, 494
4562 UNITED STATES v. SANTACRUZ
1074 (9th Cir. 2007) (en banc), to determine whether a crime
involves moral turpitude we ask whether a crime is “vile, base
or depraved and . . . violates societal moral standards.”
[2] The Supreme Court has characterized sexual abuse of
a minor as “an act repugnant to the moral instincts of a decent
people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244
(2002). Moreover, child pornography, as “permanent record
of a child’s abuse,” causes continuing “injury to the child’s
reputation and well-being.” Id. at 249. Because possession of
child pornography offends conventional morality and visits
continuing injury on children, it is “vile, base or depraved and
. . . violates societal moral standards.” Navarro-Lopez, 503
F.3d at 1074. Therefore, possession of child pornography
under 18 U.S.C. § 2252A(a)(5)(B) is a crime involving moral
turpitude.
[3] The lack of a specific intent requirement in
§ 2252A(a)(5)(B)—which bars “knowing[ ],” as opposed to
willful, possession of child pornography—does not change
this result. Specific intent is not required for a crime to
involve moral turpitude. See Nicanor-Romero v. Mukasey,
523 F.3d 992, 997 (9th Cir. 2008) (recognizing that “a crime
may qualify as one of moral turpitude even if the offense is
malum prohibitum or does not require the prosecution to
A.2d 932, aff’d, 511 A.2d 1047 (1986) (en banc). Similarly, the Board of
Immigration Appeals has held that possession of child pornography is a
crime involving moral turpitude. See In re Olquin-Rufino, 23 I. & N. Dec.
896, 896 (B.I.A. 2006) (interpreting Florida Statute § 827.071(5), which
makes it “unlawful for any person to knowingly possess a photograph,
motion picture, exhibition, show, representation, or other presentation
which . . . he or she knows to include any sexual conduct by a child”).
Although this circuit applies the “categorical” and “modified categorical”
approaches of Taylor v. United States, 495 U.S. 575, 599-602 (1990),
when determining whether a crime involves moral turpitude, see Navarro-
Lopez v. Gonzales, 503 F.3d 1062, 1067 (9th Cir. 2007) (en banc), the
state of “judicial decision” is nonetheless important to such a determina-
tion. See Jordan v. De George, 341 U.S. 223, 227 (1951).
UNITED STATES v. SANTACRUZ 4563
establish specific intent”), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)
(en banc); Navarro-Lopez, 503 F.3d at 1068 (not listing spe-
cific intent as an element of a crime of moral turpitude). Will-
ful, evil intent need not be explicit in the statute if, as here,
“such intent is implicit in the nature of the crime.” Gonzales-
Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (quotation
marks and citation omitted).
III.
[4] We hold that knowing possession of child pornography
is a crime involving moral turpitude. The district court’s order
revoking Santacruz’s naturalization is therefore affirmed.