Categorical Analysis, Ancillary Offenses: Select Cases In Ninth Circuit
by Kathy Brady
Below is an excerpt from a forthcoming update to California Criminal Law and Immigration.
1. The Supreme Court reaffirmed the principles articulated in
In Taylor v United States, 110 S.Ct. 2143 (1990), the Supreme Court set
out requirements for conducting a categorical analysis and a modified
categorical analysis, which govern how a reviewing authority such as an
immigration or criminal court judge may identify the elements of an offense that
was the subject of a prior conviction. Immigration cases in the past
conducted a similar analysis, referred to as “divisible statutes” and the
“record of conviction.” Now immigration and federal criminal court cases both are bound by federal standards
governing the categorical analysis.
Note, however, that in U.S. v Velasco-Medina, 305 F.3d 839 (9th Cir. 2002) the Ninth Circuit did rely on a California Abstract of Conviction to identify the count to which the defendant pled guilty. In that case, Count I alleged sufficient information to establish that the charge was an aggravated felony. Because the Abstract of Conviction related that the defendant had pled guilty to Count I, the court found that the government had met its burden. The Court in Navidad-Marcos did not discuss Velasco-Medina, and it also appeared to accept the Abstract as identifying the count of conviction. Immigration counsel should argue that this result violates Shepard, as well as principles set out in other Ninth Circuit precedent. See next discussion. Until the issue is resolved, however, criminal defense counsel should assume conservatively that the count noted in the Abstract will be considered by a reviewing court.
3. Under Shepard, the California Abstract of Conviction (and similar documents from other states) should not be used to identify the count of conviction. Amend § 2.11. The California Abstract of Conviction is a document that frequently is used by government counsel to characterize the elements of a prior conviction. As discussed above, the Ninth Circuit has stated that a verbal summary of the offense in the Abstract cannot be reviewed in a categorical analysis. United States v Navidad-Marcos, supra (the notation “sale/transport” in the Abstract of Judgment did not establish that the offense of conviction was sale as opposed to offering to sell). However, in Navidad-Marcos, and more explicitly in http://www.ilw.com/immigrationdaily/cases/2000,1211-Corona.shtmUnited States v Velasco-Medina, supra , the Ninth Circuit did permit the Abstract of Judgment to establish the count of conviction. Under this rule, if the Abstract included a notation that the defendant pleaded to Count I of the complaint, the factual allegations set out in Count I were considered part of the reviewable record of conviction. This always has been bad practice, and it should be held explicitly forbidden by Shepard. Shepard held that the documents that can establish the elements of a conviction by plea are “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” 161 L.Ed.2d at 216. An Abstract of Judgment-type document is not listed does not provide nearly the level of certainty of these documents. The problems inherent in using a count notation in an Abstract combined only with the charging document, as in Velasco-Medina, demonstrate the court’s wisdom in Shepard. Velasco-Medina’s reliance on the Abstract of Judgment combined only with the charging papers is based on its unexamined assumption that the factual allegations that appear in the original charging papers of a criminal case will be exactly the same as those to which a plea ultimately was entered.In fact, criminal charges frequently are amended at plea, both as to factual allegations and the offense of conviction. If the Abstract citing Count I is considered only in combination with Count I in the initial charging document, it shows merely what the government hoped to prove, not what actually was proved or pleaded to. See, e.g., United States v Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc); United States v Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2001) (“By itself, the Information contained the elements of the crime the government set out to prove; it did not establish the elements to which Velasco-Medina actually admitted in his guilty plea." (emphasis in original));United States v. Belless, 338 F.3d 1063, 1068-69 (9th Cir. 2003). Note that California law does not require that certain facts or other elements remain the same as in the original plea when a person pleads to a lesser included offense. A lesser offense may be pled to as long as it is “reasonably related” to the originally charged offense.People v West, 391 Cal.Rptr. 385, 396 (1970).
To unequivocally establish the elements of the offense of conviction, an Abstract of Judgment must be combined with unambiguous evidence of the content of the charge at the time it was pleaded to, such as the reporter’s transcript or written plea agreement that Shepard permits. With these documents the Abstract is accurate, although redundant. Without these documents the Abstract merely directs the reviewing court back to the original allegation, which is insufficient evidence in a modified categorical analysis. (See discussion of similar drawbacks of a description contained in a probation report. Corona-Sanchez, 291 F.3d at 1212-1213.)
A recent Ninth Circuit case demonstrated the potential for error inherent in using the notation of the count in the Abstract combined only with the charging papers. In Martinez-Perez v Ashcroft, 393 F.3d 1018, 1022-23 (9th Cir. 2004) the Ninth Circuit considered information in Count I of a complaint that charged the defendant with committing robbery, based on the notation of “Count I” in the Abstract of Conviction – despite the fact that the defendant ultimately had pleaded guilty to theft, not to robbery.Clearly, Count I changed between the charge and plea. The Abstract of Conviction combined with the complaint did not provide information as to the factual allegations admitted at plea, with the certainty required by Shepard and other Ninth Circuit precedent. The Martinez-Perez panel reopened the decision sua sponte after Shepard was published. The decision is pending.
Finally, the Ninth Circuit has acknowledged that the California Abstract of Judgment is a document that is prepared by clerks, not a judge, and is well-known for including errors. See discussion in Navidad-Marcos, 367 F.3d at 908-909. This alone should cause it to be suspect under Shepard
The government will use an Abstract of Judgment to prove that a conviction took place and to identify the statute of conviction. Requirements for proving the existence of a conviction are different and less stringent than requirements under the categorical analysis for characterizing the elements of the offense of conviction. See §2.9.
4. Under Shepard, courts should not use information in the record of conviction to add an element to the definition of an offense. See also Li v Ashcroft, 389 F.3d 892 (9th Cir. 2004) (concurrence).
The Ninth Circuit and other courts at times have used facts from the record of conviction to add in an element of the offense in a modified categorical analysis. For example, other circuits in considering a sex offense that had no element of age have looked at the record of conviction or beyond to identify the age of the victim, in order to find that the conviction was for “sexual abuse of a minor.” The Ninth Circuit recently found that a fraud offense could be an aggravated felony as fraud with a loss to the victim of $10,000, even though monetary loss to the victim was not an element of the offense.Li v Aschroft, 389 F.3d 892 (9th Cir. 2004) (offense can qualify as an aggravated felony and court may consult record of conviction, although the record in this case did not adequately establish the $10,000 loss). Earlier the Ninth Circuit found that where the record of conviction showed that a California burglary offense had involved an “unlawful” entry, this constituted an aggravated felony as burglary (unlawful entry into a building to commit a crime), even though an unlawful rather than lawful entry was not an element of the statute. United States v. Alvarez, 972 F.2d 1000 (9th Cir. 1992).
These decisions violate the rule in Taylor v United States that establishes when a court can proceed to a “modified” categorical analysis, i.e. when it can consult the record of conviction to clarify which elements of a a multi-part offense were proved in a particular conviction. Taylor the Supreme Court held that a reviewing court may “go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of” the generic crime. In Taylor the record could be consulted only “if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict . . . .” Taylor v. United States, 495 U.S. 575, 602 (1990) (emphases added).
In the cases cited in the first paragraph, it was not necessary to prove the victim’s age, the amount of financial loss, or the unlawful nature of the entry in order to convict the defendants, because these were not elements of the charged offenses. Therefore, under Taylor the courts should not have conducted a modified categorical analysis to search for these facts in the record. In contrast, where a California statute prohibits burglary of a car or a building, there must be proof that the defendant burglarized one or the other of them in order to support a conviction. Therefore the reviewing court can properly consult the record in order to determine which was burglarized.
Counsel making this argument should review Judge Kozinski’s concurrence in the pre-Shepard case Li v Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004).Judge Kozinski discusses the Taylor rule, describes how the Ninth Circuit wrongly has departed from it in past cases, and argues that standards accurately reflecting Taylor should be established in an en banc opinion correcting the Ninth Circuit’s course. The publication of Shepard may present this opportunity.
5. Under California law, aiding and abetting the commission of an aggravated felony such as theft is not an aggravated felony.Martinez-Perez v Ashcroft, 393 F.3d 1018, 1022-23 (9th Cir. 2004); Penuliar v Ashcroft, 395 F.3d 1037 (9th Cir. 2005). The Ninth Circuit has held that a California conviction for aiding and abetting an aggravated felony is not itself an aggravated felony, at least as theft. The court stated that this is because of the breadth of the California definition of aiding and abetting, which includes merely giving encouragement. Martinez-Perez, supra; Penuliar, supra; see also U.S. v Corona-Sanchez, 291 F.3d 1201, 1207-8 (9th Cir. 2002)(en banc).
This decision creates a key opportunity for defense against removal based on a conviction. This is especially true because under California law, a guilty plea to a charge alleging that the person directly committed the offense does not necessarily prove that the person was not convicted of aiding and abetting. See Penuliar, supra. It is likely that many already existing conviction records do not eliminate the aiding and abetting possibility, even if that was not a particular goal of the criminal defense, and therefore do not establish conviction of an aggravated felony.See next Update section. Aiding and abetting should be a potential safe plea for many purposes beyond the aggravated felony theft. The holding should apply to other aggravated felonies as well, unless some specific language prevents it. For example, where the aggravated felony definition references a federal criminal statute, counsel must confirm that aiding and abetting is not included as one of the referenced offenses. The government might argue that aggravated felony categories that are defined broadly, such as fraud with a loss of $10,000, can be committed by aiding and abetting. The aiding and abetting defense also ought to apply to other deportability and inadmissibility grounds, if they do not specifically list aiding and abetting. A conviction for aiding and abetting will not avoid consequences based on a crime involving moral turpitude, however. Traditionally aiding and abetting will involve moral turpitude if the underlying offense does.
Aiding and abetting statutes from other statues should be examined to see if, like California’s, they are broad enough to escape categorization as an aggravated felony. The Ninth Circuit noted that the California offense includes “promotion and institagation” (Calif. P.C. §31 includes “advised and encouraged”). Even if the state statute offense is narrowly defined, it is still possible that aiding and abetting might avoid categorization as an aggravated felony under the same argument as solicitation, because it is a distinct offense and not mentioned in the aggravated felony definition. See discussion at §3.4(G).
6. Under California law, an accusatory pleading against an aider or abettor may be drafted in an identical form as an accusatory pleading against the person alleged to have committed the offense. Therefore a plea of guilty to a charge alleging that the defendant took a vehicle did not prove that he was not found guilty under an aiding or abetting theory, and therefore did not prove that he was an aggravated felon.Penuliar v Ashcroft, supra. Martinez-Perez v Ashcroft, supra, which did not consider this argument, has been reopened sua sponte for further briefing. California law provides that an accusatory pleading against an aider or abettor may be drafted in an identical form as an accusatory pleading against the person alleged to have committed the offense. Therefore a plea of guilty to a charge alleging that the defendant committed theft does not prove that he or she was not found guilty under an aiding or abetting theory.See United States v Corona-Sanchez, 291 F.3d at 1207-08; Cal. Penal Code §§ 971, 31; see also People v. Greenberg, 111 Cal. App. 3d 181, 188, 168 Cal. Rptr. 416 (Ct. App. 1980). For this reason the Ninth Circuit held that a noncitizen’s plea to a charge alleging that he unlawfully took a vehicle did not make him deportable as an aggravated felon, because it did not eliminate the possibility that he was convicted as an aider and abettor.Penuliar v Ashcroft, 395 F.3d 1037, 1045-46 (9th Cir. 2005). This ruling has tremendous potential as a defense in removal proceedings. A plea of guilty to a charge alleging that the defendant directly committed an offense that is an aggravated felony is insufficient as a matter of law to prove that the person is an aggravated felon, because it leaves open the possibility that the person pleaded as an aider and abettor. It is likely that many already existing conviction records do not eliminate the aiding and abetting possibility, even if that was not a particular goal of the criminal defense, and therefore do not establish conviction of an aggravated felony. As discussed in the prior section, this also may extend to many grounds of deportability and inadmissibility (although not the moral turpitude grounds). In Martinez-Perez v Ashcroft, the court found that the record established that Mr. Martinez had been convicted of directly committing the offense, and not of aiding and abetting. It found this based on the fact that Count I in the charging document alleged that Mr. Martinez had committed robbery; that Mr. Martinez pleaded guilty to theft under a Count I; and that the record of conviction available to the court did not mention a co-defendant or co-conspirator. The court reopened the decision and requested additional briefing in light of Shepard. The Immigrant Legal Resource Center is co-counsel for Mr. Martinez at this stage. The decision appears to directly conflict with Ninth Circuit precedent and Shepard because (a) the record contained no evidence of the factual allegations supporting the theft charge to which Mr. Martinez actually pleaded; (b) even if it were established that Mr. Martinez pleaded guilty to an allegation that he directly committed the theft, this would not suffice to prove that he was not convicted of aiding and abetting; and (c) drawing inferences from the absence of information in the record (i.e., the lack of co-defendants) is not permitted in a categorical analysis under Ninth Circuit precedent, and was specifically disapproved by Shepard.
1 The Court also described the reviewable evidence as “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” 161 L.Ed.2d at 216.
2 See U.S. v Rivera-Sanchez,247 F.3d 905 (9th Cir. 2001)(en banc) and discussion at §3.5(B).
3 See, e.g., Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001).
4 Martinez-Perez has been reopened sua sponte by the court in light of the Supreme Court decision in Shepard. This should not affect the first half of the Martinez-Perez decision, wherein the court held that aiding and abetting a theft is not an aggravated felony. It affects the second half, where the court appeared to incorrectly find that the record of conviction in the case established that Mr. Martinez was convicted of directly committing the theft.
5 The Court en banc noted that aiding and abetting liability in California "is quite broad, extending even to promotion and instigation." United States v. Corona-Sanchez, 291 F.3d at 1208; see also Martinez-Perez v Ashcroft, 393 F.3d at 1023.
Katherine Brady is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email: email@example.com
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