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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - x
ALBERTO R. GONZALES,
ATTORNEY GENERAL,
Petitioner
:
:
:
v. : No. 05-1629
LUIS ALEXANDER DUENAS-ALVAREZ. :
- - - - - - - - - - - - - - - - - x
Washington, D.C.
Tuesday, December 5, 2006
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 10:06 a.m.
APPEARANCES:
DAN HIMMELFARB, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on
behalf of the Petitioner.
CHRISTOPHER J. MEADE, ESQ., New York, N.Y.; on behalf of
the Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
DAN HIMMELFARB, ESQ.
On behalf of the Petitioner 3
ORAL ARGUMENT OF
CHRISTOPHER J. MEADE, ESQ.
On behalf of the Respondent 23
REBUTTAL ARGUMENT OF
DAN HIMMELFARB, ESQ.
On behalf of the Petitioner 50
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P R O C E E D I N G S
(10:06 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument
first today in case 05-1629 Gonzales versus
Duenas-Alvarez.
Mr. Himelfarb.
ORAL ARGUMENT OF DAN HIMMELFARB
ON BEHALF OF PETITIONER
MR. HIMMELFARB: Mr. Chief Justice, and may
it please the Court.
The Ninth Circuit held that the term theft
offense, an aggravated felony under the Immigration and
Nationality Act, does not include aiding and abetting.
That holding is incorrect. Indeed, it is so clearly
incorrect that even respondent does not defend it.
Respondent's aiding and abetting argument is that his
violation of the California vehicle theft statute is not
a theft offense under the INA, not because the
California statute covers aiding and abetting and the
theft offense does not, as the Ninth Circuit held, but
because the California statute covers a certain kind of
aiding and abetting, so-called natural and probable
consequences rule, and a theft offense does not.
That theory is slightly narrower than the
Ninth Circuit's but it is mistaken for many of the same
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reasons. One of the reasons that the Ninth Circuit's
holding is mistaken is that it would drastically limit
the number of aliens who could be treated as aggravated
felons based on a conviction obtained in any
jurisdiction, because no jurisdiction distinguishes
between principals and aiders and abetters and it is
ordinarily not possible to prove that an alien in a
particular case was not convicted as an aider and
abettor. Respondent's theory would have the same effect
when a conviction was obtained in any jurisdiction that
obtains the natural and probable consequences rule.
JUSTICE SOUTER: Will you help me out on one
mechanical point? As you probably know from your brief,
I don't come from a jurisdiction that uses this rule and
I'm just not used to it. I had thought -- and I guess
I'm wrong -- that if the natural and probable
consequences theory were used to prove, let's say,
ultimately the offense of assault, in what started out
as a theft case, that there would have to be a separate
charge of assault but that the theory of proof would be
the natural and consequences extension of aiding and
abetting so that there would at least be on the record a
charge of assault.
And I take it that's not the case.
MR. HIMMELFARB: I -- I don't think it is.
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I --
JUSTICE SOUTER: Otherwise, you wouldn't
have this problem.
MR. HIMMELFARB: Well, it is the case that
the aider and abettor has to intend to aid and abet what
is sometimes called the target crime. It also has to be
the case that the principal has to then go on to commit
some other crime, a subsequent crime. The issue then
arises whether the aider and abettor who intended to
assist the target crime is held liable for the
subsequent crime.
JUSTICE SOUTER: But in any case in my
example of -- of theft, and the further offense under
natural and probable consequences being assault, the
only charge against the defendant who aided and abetted
would be a charge of theft; is that correct?
MR. HIMMELFARB: It could be. It could be.
But in the course of proving the aider and abettor
guilty of the subsequent crime on this natural and
probable consequences theory, there would have to be
proof that bore upon the target crime to show what his
intent was with respect to the target crime and also
whether the subsequent crime was a foreseeable
consequence of the initial crime.
JUSTICE SCALIA: I don't understand it. How
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can he be convicted of -- of the consequential crime if
he is never charged with the consequential crime? You
charge him with the -- with the theft and convict him of
assault?
MR. HIMMELFARB: No, Justice Scalia. He
would have to be charged with the subsequent crime.
JUSTICE SCALIA: Okay, well I thought you --
I thought you answered --
JUSTICE SOUTER: Me too.
MR. HIMMELFARB: I didn't mean to say that.
I meant to say he didn't have to be charged with the
initial crime. In fact, even the principal wouldn't
have to be charged with the initial crime or for that
matter, any crime. The aider and abettor could be
charged only with a consequent crime but in the course
of proving that under the natural and probable
consequences rule, there would have to be proof with
respect to the target crime, because the elements of the
natural and probable consequences rule depend upon what
happened.
JUSTICE SCALIA: The theory being that
anybody who intended to aid and abet a crime which
naturally leads to another crime intended the other
crime as well.
MR. HIMMELFARB: That's the basic principle.
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JUSTICE GINSBURG: Mr. Himmelfarb, does the
government urge that we consider the point that you're
now arguing and the other points? You started out by
saying everyone agrees that the rationale of the Ninth
Circuit won't wash, but if we go beyond that, then we
are deciding the question as a matter of first view
instead of review.
Does the government urge that we dispose of
those issues anyway, even though they were not disposed
of by the Ninth Circuit?
MR. HIMMELFARB: We think that the aiding
and betting argument that respondent raises is fairly
included within the question presented and that it
should be resolved. We don't think the other two issues
are fairly included within the question presented.
We think that this issue is fairly presented
within the -- fairly included within the question
presented and should resolve --
JUSTICE GINSBURG: But it wasn't discussed
by the Ninth Circuit, was it?
MR. HIMMELFARB: It wasn't,
Justice Ginsburg, but it bears upon the question of what
it means to say that an aggravated felony encompasses
aiding and abetting. If the Court simply holds contrary
to the Ninth Circuit's holding that aiding and abetting
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is included in an aggravated felony, it will leave open
a very important question which we think the Court
should provide guidance to the lower courts on. It
would leave open the question of whether that means that
there is some general Federal immigration law definition
of aiding and abetting with which the law of aiding and
abetting in the jurisdiction of conviction would have to
be compared in every single removal case, at least
potentially, or rather as we would submit, that Congress
intended to cover the entire range of aiding and
abetting under whatever formulation was used in any
jurisdiction at the time the aiding and abetting
provision was added to the Immigration and Nationality
Act.
JUSTICE SCALIA: And what about the
remaining questions that were not decided by the Ninth
Circuit?
MR. HIMMELFARB: Well, certainly the --
JUSTICE SCALIA: Do we remand for those or
what?
MR. HIMMELFARB: Yes. It's open to -- it
would be open to the Ninth Circuit. Assuming the Ninth
Circuit were of the view that they were fairly raised in
the Ninth Circuit, and also that they were fairly raised
in the agency, it would be open to the Ninth Circuit to
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resolve those questions in the first instance. Let me
just add that --
JUSTICE GINSBURG: Why would it have to be
raised in the Ninth Circuit? I thought this case was
controlled by a prior decision of the Ninth Circuit.
Therefore, there was nothing more that was needed to
take care of this case.
MR. HIMMELFARB: That's true. The Ninth
Circuit didn't pass upon any issue except the question
whether aiding and abetting as a general matter is
included in a theft offense. Relying on a prior
decision, it held that it wasn't, and sent the case back
to the Board of Immigration Appeals. But there, I think
it would still be fair for the government to argue that
a particular theory that may be raised here in defense
of the judgment wasn't properly raised either in the
Ninth Circuit by respondent, or before the agency, such
that that claim was not properly exhausted.
JUSTICE SCALIA: Mr. Himelfarb, you point
out these last two issues are not, and probably
correctly, that they are not fairly included within the
question presented. Well, that would be disabling if
indeed it was the petitioner that is seeking to raise
those two additional issues. But here it is the
respondent; and we can certainly reach those issues if
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we want to.
MR. HIMMELFARB: Of course. Of course.
JUSTICE SCALIA: The respondent can seek to
uphold the judgment below on whatever grounds he wishes.
MR. HIMMELFARB: Of course.
JUSTICE SCALIA: So we can reach those other
issues if we wish.
MR. HIMMELFARB: It's ultimately a matter of
the Court's discretion. Our submission is that the
wiser exercise of the Court's discretion would not --
would be not to address the issue, particularly the last
issue raised in respondent's brief.
CHIEF JUSTICE ROBERTS: Well, the only thing
that the Ninth Circuit held was that the definition of a
theft offense in California is broader than the generic
definition of theft. All of these arguments that are
being discussed are ways in which that particular ruling
is supported. I don't know why they wouldn't be
considered subsumed under the Ninth Circuit's decision.
MR. HIMMELFARB: Well, Mr. Chief Justice, we
don't read the Ninth Circuit's order that way. We think
the Ninth Circuit simply reversed on the strength of its
prior decision in Penuliar. And in Penuliar, the Ninth
Circuit clearly held the reason this California statute
was not a theft offense was that conviction under it is
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possible under an aiding and betting liability theory.
So insofar as the order relied on Penuliar, it was
saying nothing more and nothing less than that
respondent's conviction was not a theft offense because
it is theoretically possible he was convicted as an
aider and abettor and the definition of theft offense
under the INA does not include aiding and abetting.
Now as I was saying, I think it's important
for the Court to make clear what it means to say, that
aiding and abetting is included in the aggravated felony
definition. And this -- the type of argument that
respondent raises here, I think is important to keep in
mind, is not limited to the particular aspect of aiding
and abetting law on which he relies.
There are a great many different
formulations of the basic requirements of aiding and
betting. Not only that they -- they vary not only from
jurisdiction to jurisdiction but even within
jurisdictions. So in the next case, you could imagine
an alien or removal case arguing that because some other
requirement of aiding and abetting law in the
jurisdiction in which he was convicted is broader than
the more typical formulation, that even though he was
clearly convicted of, for example, murder, and even
though the elements of murder in that jurisdiction
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perfectly match up with the federal definition of murder
in the immigration statute --
CHIEF JUSTICE ROBERTS: Counsel, you're
ahead of me, and I'm still back on the last question,
but I take it your rationale for not reaching these
other grounds would also apply to your argument that
whatever the categorical definition, that this defendant
was convicted of an actual theft offense, looking at the
charging documents. That wasn't a basis for the Ninth
Circuit's decision either.
MR. HIMMELFARB: That's true, Mr. Chief
Justice. Our main submission is that the Ninth Circuit
relied on an issue of aiding and abetting. We
petitioned on that question and the Court granted
certiorari on that question.
The three grounds on which respondent relies
on defense of the judgment, even though they all vary in
some sense from the Ninth Circuit's ground, two of them
simply have nothing to do with aiding and abetting. The
first ground is an aiding and abetting argument. It's
slightly different from the one, slightly narrower than
the one on which the Ninth Circuit relied, but we think
it's fairly included and we think the Court should
address it. We think the Court should reject it for the
reasons I am attempting to articulate now.
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If you have a jurisdiction with a law of
aiding and abetting that is broader, it can be
characterized as broader in some sense than what might
be thought to be the general notion of aiding and
abetting, under the premise of respondent's theory, you
could conceivably have this kind of argument in any
removal case --
JUSTICE ALITO: What if a particular
jurisdiction has an entirely novel and fundamentally
different theory of aiding and abetting? Is it simply
sufficient that it is labeled aiding and abetting?
MR. HIMMELFARB: Well, Justice Alito, we
think it would be perfectly appropriate for the Court to
leave open the question that if at some point in the
future, some entirely novel radical far-reaching theory
of aiding and abetting were adopted, that would not be
sufficient. I don't think as the law currently stands
there is any such theory in any jurisdiction; and I
think that Congress should be presumed when it enacted
the aggravated felony provision, to be covering the
field of possibilities. But if at some point in the
future some jurisdiction decided that, you know,
somebody could be strictly liable --
JUSTICE STEVENS: Mr. Himmelfarb, what about
accessory after the fact, do your comments apply to that
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argument as well?
MR. HIMMELFARB: Well, we think that that's
not fairly included within the question presented. We
think that's just a -- accessory after the fact is a
separate crime
JUSTICE STEVENS: Well, it may not be fairly
included but as you've acknowledged, it is an argument
asserted to defend the judgment.
MR. HIMMELFARB: That's right. We think
that the Court could resolve that issue along the lines
we've suggested in our reply brief. Respondent's basic
submission on that point is that the term -- the phrase
in the California statute, any person who is a party or
an accessory to or an accomplice in the driving or
unauthorized taking or stealing, that in that phrase the
term accessory means accessory after the fact. An
accessory after the fact is not included in the
definition of the theft offense. Therefore, the
California statute is broader than a theft offense.
It's our submission that the Court can assume that he's
right about that but still rule for the government on
the accessory after the fact issue, because whatever the
statute might say, he was charged as a principal. And
the law is clear that somebody charged as a principal --
JUSTICE GINSBURG: How do we know that? I
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was looking at, what is it, 13-A? How do we know that
that charge is as a principal? In the appendix to the
petition.
MR. HIMMELFARB: Well, Justice Ginsburg, it
tracks the language of the statute up to the point where
the statute uses the phrase I just read.
So it's principal language. It's
theoretically possible that he was convicted as an aider
and abettor because the law in California, as it is
elsewhere, is that somebody charged as a principal can
be convicted as an aider and abettor; but the law in
California, as it is elsewhere, is that somebody charged
as a principal cannot be convicted as an accessory after
the fact. There is no language in the charging
instrument to suggest that respondent was charged as an
accessory after the fact.
JUSTICE SOUTER: But to accept your answer,
we've got to look into a question of California pleading
law which hasn't been passed on below.
MR. HIMMELFARB: Well, that's right.
Respondent raises a number of arguments in response
essentially to the argument I just made. We think
they're all entirely insubstantial and could be rejected
quite easily. But it may well be that the Court would
think that the better course is not to address the
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accessory after the fact issue.
JUSTICE SCALIA: Why wouldn't the better
course be also not to decide the principal question you
want us to decide on the broad ground that you want us
to take, which is that if there are minor differences
between what you might call the general law of aiding
and abetting, it doesn't matter. Why wouldn't it be
wiser to decide this on the simple ground that this kind
of consequential liability is part of the general law of
aiding and abetting, which you argue in your brief?
So that would be the narrower ground.
MR. HIMMELFARB: That would be narrower
ground. That is certainly our fallback position and we
would not be at all unhappy if the case were resolved on
that ground.
JUSTICE GINSBURG: Even though that position
has been widely criticized, I think. Is it the
ALI Model Penal Code, which thinks it's a bad rule?
MR. HIMMELFARB: There has been some
criticism of the rule, Justice Ginsburg, but it is
applied in criminal cases in Federal courts; and
whatever criticism there might be in the academic
literature, even in some state decisions, we think it is
just inconceivable that Congress would have intended
that somebody could be convicted under this theory under
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the Federal criminal law and be subject to the same
criminal penalties as a principal, and yet under the
federal immigration law could not be subject to the same
immigration consequences as a principal. So whatever
grounds there are for criticizing it, it is the law in
most places. And most importantly, we think, it is the
law in Federal courts.
Taking account of minor variations in
formulation of aiding and abetting standards among
jurisdictions would not only have the consequence of
drastically limiting the number of aliens who could be
found to be aggravated felons, because of the difficulty
of establishing that someone was convicted as a
principal rather than an aider and abettor. It would
also complicate removal cases enormously, as I
mentioned.
The premise of respondent's aiding and
abetting theory would suggest that in any case, it would
be necessary for the immigration judge, board of
immigration appeals and the reviewing court, to engage
not only in an analysis of whether the principal offense
of conviction matches some Federal definition, which
itself can be a quite complex enterprise, but having
done that, it would then have to go on and compare the
aiding and abetting law of the state of conviction with
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some Federal aiding and abetting law.
JUSTICE SCALIA: In that former question as
to whether California theft is general theft, do you
propose the same rule? That even if California has some
minor variations -- not just in aiding and abetting but
in what constitutes theft -- minor variations from what
the general national rule is, they should be
disregarded? And if not, why not?
MR. HIMMELFARB: Well, we think that -- we
don't, first of all.
And I think no court would say that and we
certainly wouldn't. But there's a very important
difference insofar as that type of comparison was
concerned between on the one hand a principal offense
and on the other hand aiding and abetting. The two
important differences are if you have a general
definition of the principal offense, whether it's a
theft offense or burglary, any reasonable framework
would contemplate that in a great many cases you would
be able to tell whether the alien before the court was
convicted of that offense, of the Federal definition of
that offense, simply by looking at the State statute of
conviction; and if it matches it, that's the end of the
analysis. If it's broader, in most cases you'd be able
to look at the charging instrument and see whether that
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person was charged with something narrower than the
whole range of conduct that's covered by the statute.
Under respondent's theory, if you were
to apply that same approach to aiding and abetting you
would never be able to look at the statute to see
whether somebody was convicted under an aiding and
abetting theory that matches the Federal definition
because every statute includes aiding and abetting, so
it's impossible to tell from the statute whether
somebody was convicted as a principal or an aider and
abettor.
Then if you look at the charging
instrument, that won't suffice either because the law
everywhere as far as I'm aware is that somebody charged
as a principal can be convicted as an aider and abettor.
So the only cases in which you'd be able to establish
that somebody was not convicted as an aider and abettor
are the unusual cases where there happens to be
something in the files of the criminal case that will
explain in some admissible fashion whether the defendant
was convicted as a principal or an aider and abettor.
That's the first important distinction. The second --
JUSTICE SCALIA: So you would limit your
rule just to aiding and abetting and not to other minor
variations, just minor variations in the aiding and
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abetting definition?
MR. HIMMELFARB: That's right. I mean, our
submission is that Congress's intent in enacting an
aggravated felony provision that captures aiders and
abettors was that minor variations in formulation
wouldn't matter for the reasons I'm giving. So it's
ultimately a matter of Congressional intent.
The second reason why this is important is
because if you were to apply that rule to aiding and
abetting you would be saying, in effect, that in any
jurisdiction that applies a broader rule of aiding and
abetting every single crime in the criminal code would
not qualify for aggravated felony status, because an
aiding and betting statute runs with the entirety of the
criminal code and is a potential theory of liability for
every substantive criminal offense. So that would mean
that in those, those broader aiding and abetting
jurisdictions, nothing could ever be an aggravated
felony unless the government could somehow search
through the criminal files and find something to prove
that in fact the defendant was not convicted under an
aiding and abetting theory.
JUSTICE GINSBURG: Mr. Himmelfarb, before
your time runs out, there's something curious about this
California statute. This one is in the Motor Vehicle
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Code, and there's this offense in the Penal Code called
car theft. Do you know what the difference between
those two and what would move a prosecutor to charge
under the Penal Code as opposed to the Vehicle Code?
MR. HIMMELFARB: Well, the theft offense
that covers cars under than this one in California that
I'm aware of, Justice Ginsburg, is just a grand theft
statute, which is just general theft as applied to
particular circumstances, one of which is the theft of a
car.
JUSTICE GINSBURG: That's mentioned in what,
487(d)?
MR. HIMMELFARB: That's right. That's
right. And as I understand it, that is essentially a
larceny statute, which encompasses a common law larceny
rule, which is that there has to be an intent to steal
or, stated differently, that there has to be an intent
to deprive the owner of the car, of the car permanently,
whereas the California vehicle theft statute at issue
here is a broader statute in that it doesn't require any
intent to steal. It doesn't even require a taking. A
driving is sufficient. So it would capture the receipt
of stolen property. And it doesn't require an intent to
deprive the owner of the car permanently. It would be
sufficient if there was an intent to deprive the owner
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of the car temporarily.
JUSTICE GINSBURG: It covers joyriding?
MR. HIMMELFARB: Well, it would cover -- it
would cover what is colloquially known as joyriding if
it fell within the terms of the statute. That is, if
there was an intent to deprive the owner of the
property. And on the subject of joyriding, let me --
JUSTICE GINSBURG: Temporarily.
MR. HIMMELFARB: At least temporarily.
Respondent makes much of the fact that on
our reading of the statute, on our understanding, that a
theft offense would cover the California vehicle theft
statute here. That would mean that joyriding would be
included. But I think it's critical to keep in mind
that there are two very important limitations in the
Federal definition of theft offense. The first is that,
as interpreted by the Board of Immigration Appeals, it
does require an intent to deprive the owner of property,
and a great many unauthorized use of vehicle statutes in
the State don't have that element. That's one important
limitation.
The other is that many of these statutes are
misdemeanor statutes, so somebody convicted of it would
not be sentenced to more than a year in prison. By the
terms of the theft offense provision of the aggravated
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felony provision in the INA you have to be sentenced to
at least a year in prison in order to be treated as an
aggravated felon. So we think the vast majority of what
is colloquially known as joyriding cases would not fall
within this particular aggravated felony.
JUSTICE GINSBURG: But in California they
would? Or is there a separate joyriding --
MR. HIMMELFARB: No. Joyriding in
California would be prosecuted under this statute. But
unless there was an intent to deprive, there could be no
conviction, and unless the sentence was at least a year
it would not be treated as an aggravated felony.
JUSTICE SCALIA: Is it the sentence given or
the sentence prescribed for the crime?
MR. HIMMELFARB: The sentence given, Justice
Scalia.
JUSTICE SCALIA: Given.
MR. HIMMELFARB: I'd like to reserve the
remainder of my time.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Himmelfarb.
Mr. Meade.
ORAL ARGUMENT OF CHRISTOPHER J. MEADE
ON BEHALF OF RESPONDENT
MR. MEADE: Mr. Chief Justice, and may it
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please the Court:
I would like to pick up on the point made by
Justice Ginsburg. This case does not involve a
conviction under California's car theft statute, which
is Penal Code 487(d), which requires an intent to steal.
Rather, it involves a conviction under California's
Vehicle Code, which covers varied and less serious
conduct including liability with or without the intent
to steal and also expressly reaching accessories after
the fact, which the Government concedes would make it
broader than the generic definition of theft.
The question is whether a conviction under
this statute is a theft offense and therefore an
aggravated felony triggering the extremely serious
consequences of automatic deportation from the United
States, a permanent bar from the United States, and in
the sentencing context a sentencing enhancement from 2
to 20 years for illegal reentry.
CHIEF JUSTICE ROBERTS: Your friend began
his argument by saying you don't defend the decision of
the Ninth Circuit below on aiding and abetting. Is that
correct?
MR. MEADE: We do defend the judgment of the
Ninth Circuit.
CHIEF JUSTICE ROBERTS: I know the judgment,
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but you focused at least primarily on other grounds than
the one on which the Ninth Circuit relied.
Is he correct that you concede that merely
because the statute extends to aiders and abettors that
is not sufficient to take it out of the categorical
treatment?
MR. MEADE: As an abstract general matter
divorced from the facts of this case and divorced from
California law, we agree that aiding and abetting
liability is part of a generic definition of any crime,
including the theft offense here.
However, that's not what the Ninth Circuit
stated in either this case or in Penuliar. In Penuliar
the Ninth Circuit stressed the extremely broad nature of
California's aiding and abetting liability. It cited a
case, People v. Beeman, which refers to the specific
natural and probable consequences doctrine under
California law.
So the Ninth Circuit was talking about the
broad sweep of aiding and abetting liability under
California law.
JUSTICE SCALIA: Could I ask a factual
question? I'm just curious. If the Government's
statement of the facts here is correct, your client, a
Peruvian, was convicted of burglary in 1992 and
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convicted of possession of a firearm by a felon in 1994,
and nonetheless was made a lawful permanent resident in
1998. How does that happen? Is that a mistake or --
how do we decide who's admitted as a lawful permanent
resident?
MR. MEADE: I don't know the answer to the
question except to state that those two, those
convictions did happen in the years that you state and
he did become a lawful permanent resident in 1998.
I believe it was through a waiver provision
under the INA that that's how he became a lawful
permanent resident.
JUSTICE SCALIA: He's not a joyrider anyway.
MR. MEADE: I would disagree with that. All
we know in this case from the record is that he was not
charged with 487(d) car theft, which requires an intent
to steal. He was rather charged under a conviction
which covers joyriding.
In my reading of the Government's brief, the
Government doesn't contest that joyriding would put a
statute outside the generic definition of theft offense.
Even in the Government's presentation today, the
Government suggested that in most States joyriding would
be outside the generic definition of --
JUSTICE BREYER: So then the Ninth Circuit
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was wrong in your opinion when it defined generic theft
as the taking or exercising control over property
without consent, with the intent to deprive the owner of
rights and benefits, even if it is less than permanent
or total? They're wrong in your opinion?
MR. MEADE: No, I don't think they're wrong.
JUSTICE BREYER: Well then, I don't see
how you make --
MR. MEADE: Sure. I'd be happy to --
JUSTICE BREYER: Isn't that
inconsistent with what you just said?
MR. MEADE: No.
JUSTICE BREYER: Why not?
MR. MEADE: No, it's not inconsistent. We
don't take the position that a permanent deprivation is
required, is required. A less than permanent
is sufficient, as the Ninth Circuit stated in
Corona-Sanchez. The Ninth Circuit has subsequently held
that a joyriding offense is outside that definition
because it includes a brief taking with an intent to
return, and the last footnote of the Government's brief,
note 8, cites that Ninth Circuit case.
JUSTICE BREYER: I don't understand how that
could be right, though. I mean, when you joyride it's
less than personal. In other words, their definition is
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if you take somebody else's property for an hour that
that isn't theft, but if you take it for a day it is?
MR. MEADE: The question has to do with how
long of the taking. And at common law --
JUSTICE BREYER: They're trying to -- is
there a common law, because they're trying to report --
is under the common law there a rule or any generic rule
that says if you take somebody else's property for a
couple of hours it is not theft, but if you take it for
several hours or several days it is theft?
MR. MEADE: There is a generic rule on this,
and there is a consensus among the vast majority of
States. I point to both Professor LeFave as well as the
Model Penal Code. And what these rules say -- and this
is true in the vast majority of States, 42 States by our
count -- is that if you take either permanently or for
an unreasonable amount of time such that it would
deprive the owner of the significant portion of the
economic value, then that constitute a theft offense.
JUSTICE SCALIA: You shouldn't steal it for
an unreasonable amount of time, just for a reasonable
amount of time?
MR. MEADE: Excuse me.
JUSTICE SCALIA: I don't understand the
concept of stealing something for a reasonable amount of
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time.
MR. MEADE: Well, I mean, that goes to the
exact point, Justice Scalia, because we're not -- the
question is what is stealing. The question --
JUSTICE BREYER: You're saying that the rule
is something is theft only if you take it long enough to
deprive an owner of a significant portion of its value?
MR. MEADE: Or a reasonable time, or to
place --
JUSTICE BREYER: No, no, no. Wait. I want
to know where that comes from, because I would think I
have a Volvo. It lasts for about 30 years, apparently.
So I guess if you took my car for a year, that that then
would not be a theft, or maybe it would be. Where is
the source of the rule you just cited?
MR. MEADE: The source is the generic
definition as applied in all of the States.
JUSTICE BREYER: No, no. I want a book. I
want a book that will tell me that if they take my car
for a month it isn't theft, but if they take it for a
year it is. What book, or where do I look to verify
that this is common law? I'm not denying what you're
saying. I just want to know where to look.
MR. MEADE: Sure. Two sources. One would
be Professor LeFave in his discussion of what the intent
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required for the different theft offenses; and the
second source would be the Model Penal Code when it sets
forth the requisite mens rea for theft offenses.
CHIEF JUSTICE ROBERTS: That was the third
reference to the Model Penal Code, so I have to ask. No
one's enacted the Model Penal Code, have they?
MR. MEADE: No. But in Taylor and in
Seidler this Court used the Model Penal Code as a
shorthand for the generic definition of a certain crime.
But we don't rely on the Model Penal Code.
CHIEF JUSTICE ROBERTS: Would you describe
the Model Penal Code as closer to restatement or
aspirational in terms of its reflection of the existence
of general law?
MR. MEADE: I would say that the Model Penal
Code is consistent with the majority view. On this
question of intent to steal, as we set forth in our
brief, 42 States hold what we say the law is, that an
intent to steal -- a theft offense requires a mens rea
more than taking with an intent to give back.
JUSTICE SCALIA: You assert, you assert it's
consistent with the majority view on this issue, not on
everything. What does it say about the death penalty?
MR. MEADE: I'm not sure what it says about
the death penalty. On this issue.
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CHIEF JUSTICE ROBERTS: Is that what
joyriding is? That when you're done with your joy ride,
you return the car where you picked it up? I thought
they just abandoned it wherever you happen to be.
MR. MEADE: If you abandon the car wherever
you happen to be that's not joy riding. That's covered
by traditional larceny principles. In the, the case of
State v. Davis from 1875 involves that exact principle.
That is larceny in that case. But however, if someone
takes a car, a teenager, a neighbor takes a car, drives
it around the block, brings it back to the same place,
that is joyriding. That is covered by 108.51.
CHIEF JUSTICE ROBERTS: What's the joy in
that?
(Laughter.)
JUSTICE SCALIA: The joy apparently is you
don't get convicted of theft.
(Laughter.)
MR. MEADE: But what we have here is statute
that criminalized conduct less serious than car theft.
This is -- 108.51 is the only statute in California that
covers joyriding. There's a whole different provision
that deals with car theft. In cases where that's the
appropriate charge, prosecutors will charge the person
with car theft and meet the burden of proof. Here we're
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dealing with a less serious crime, a less serious
statute and the question is whether this statute that
require a very minimal mens rea, with or without intent
to steal, is sufficient to lead to the very serious
consequences of being an aggravated felony.
CHIEF JUSTICE ROBERTS: Do you understand
that point to be what the Ninth Circuit relied on?
MR. MEADE: No. Absolutely not. The Ninth
Circuit didn't rely on that. It was presented to the
Ninth Circuit but the Ninth Circuit did not rely on
that.
CHIEF JUSTICE ROBERTS: So if we decided on
the question, the aiding and abetting question, they did
decide this would available to you to argue on remand?
MR. MEADE: Uh, yes.
CHIEF JUSTICE ROBERTS: Because you
presented it to the Ninth Circuit below.
MR. MEADE: Yes, it would.
I would like to also to address the question
of accessory liability under California law.
108.51 expressly covers accessories. The
Government concedes that if that term means accessory
after the fact, then this statute is outside the generic
definition of a theft offense. Under California law,
accessory has only one meaning, and that one meaning is
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accessory after the fact. On that ground alone, this
statute is broader than a generic definition of theft
offense and would provide a -- an alternate ground of
affirmance in this case.
JUSTICE GINSBURG: Mr. Meade, the Government
says that definition holds for penal code offenses, but
it's not altogether clear that a definition in the penal
code would carry over to the vehicle code.
MR. MEADE: I have two responses,
Justice Ginsburg. First, there's a similar provision to
108.51 covering the taking or operating of an airplane.
It is in the penal code. It is 499(b). It exactly
mirrors the language of 108.51. So presumably the
Government would agree that the definition of accessory
under California law in the penal code would cover
499(b) for the same reasons it would cover under 108.51.
Moreover, accessory under California law only has one
meaning. In 1872 the California legislature passed the
provision at issue, Section 32 and said accessory is
defined to be accessory after the fact. At the same
time, the legislature passed other provisions which also
used accessory in that consistent way.
The California Supreme Court as early as
1898 stated that accessory means accessory after the
fact and relatedly, accessory before the fact, the only
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other plausible meaning of the term, has no meaning
under California law.
So with all due respect to the Government,
accessory in 108.51 means accessory after the fact and
that alone makes a broad and generic definition of theft
offense.
JUSTICE ALITO: So wouldn't it odd for this
Court to decide that issue of California law?
MR. MEADE: I wouldn't think it would be
odd, Justice Alito, because it is so clear. It has to
do with a statutory term. It has to do with a statutory
term that's defined under the California statute.
Moreover, under a Taylor inquiry, Federal courts are
often required to look at state law to figure out
whether a particular provision is within or outside a
generic definition of a crime.
JUSTICE SCALIA: Of course if you're right
about this it would mean the statute is broader, but it
would still be available to find out whether your client
was in fact convicted as an accessory or as a principal.
MR. MEADE: That's correct, Your Honor.
JUSTICE SCALIA: Now is that -- is it
possible? Or is that out of the question in this case?
MR. MEADE: I'm sorry. Is what possible?
JUSTICE SCALIA: Is it possible from
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pleading documents, from the charge, to determine
whether he was convicted as an accessory or not? And if
it's clear that he wasn't, then we're just wasting our
sometime in arguing this point, aren't we?
MR. MEADE: I disagree. Because as an
initial matter, this case in our view is about the
categorical approach. But as to your question about
what these documents show, no, the documents in this
case do show that he was an accessory after the fact or
a principal, but the Government has failed to meet its
burden one way or the other.
CHIEF JUSTICE ROBERTS: Well, they say you
cannot be convicted as an accessory unless you are
charged as such, and that the documents show he was
charged as a principal.
MR. MEADE: We disagree with that
characterization of the Government as we set forth in
our brief. California law does not require someone to
be charged with that specific -- level of specificity.
And that's something we set forth in our brief.
Moreover --
JUSTICE GINSBURG: Well how about how -- how
the defendant was charged in this very case?
Mr. Himelfarb thought that it was plain from that
charge, that's on 13(a), that he was charged as a
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principal. And you must take the view that this charge,
this information was inadequate to identify him as
principal.
MR. MEADE: This charge is ambiguous as to
whether he was charged as a driver and taker, as the
principal, or as an accessory after the fact.
JUSTICE SCALIA: No, no, no. It says, "who
at the time and place last aforesaid did willfully and
unlawfully drive or take a vehicle." I mean, he is --
he's charged with being the person who took the vehicle,
not, not some subsequent accessory.
MR. MEADE: Well, this is a question of
California law.
JUSTICE SCALIA: It is not a question of Cal
-- it is a question of English.
MR. MEADE: No, I disagree, Your Honor. I
mean, it's a question of California law what needs to be
charged in a California charging document.
JUSTICE SCALIA: We're not saying about what
needs to be charged. We're talking about what was
charged. And it seems to me there's no question what
was charged is that he did willfully and unlawfully
drive or take a vehicle. There is no way you can
consider that an accessory.
MR. MEADE: Well, I disagree. Because under
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California law you need to charge generally under the
statute, and the statute says drive or take. That's how
he was charged. Moreover, though, under California law,
the charging document does not necessarily control the
conviction.
JUSTICE SOUTER: No, but you're -- you're
saying then despite the fact that the, the indictment in
this case said he willfully et cetera did this, it would
be open to California to prove that in fact he didn't do
any of those things, but was merely an accessory after
the fact? That -- that's your position? That's what
California pleading law allows?
MR. MEADE: Yes.
JUSTICE SOUTER: Okay.
JUSTICE STEVENS? Do you have any case on
that?
MR. MEADE: Yes. People v West and People v
Toro.
JUSTICE STEVENS: Both West and Toro.
MR. MEADE: Yes. W-e-s-t, and People v
Toro. There's also the case of Sandoval which is also
cited in our brief.
JUSTICE STEVENS: Does any of those cases
squarely hold that he could be convicted of being an
accessory after the fact on a general indictment like
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this?
MR. MEADE: No, none of them do. They talk
about the general principle under California law, about
that a charging document does not necessarily control
the ultimate conviction and sets forth the test that
needs to be applied. But on this question --
CHIEF JUSTICE ROBERTS: Well, the Government
-- it is not only that. The Government has authority
going the other way. People versus Prado, "in the
absence of a statute, an accessory after the fact must
be indicted and convicted as such." If you look at this
information, it's clear that he's not being indicted as
an accessory after the fact.
MR. MEADE: Well, we think People v Prado
supports our view which is a statute specifically that
allows for accessory liability on its face. So,
therefore, a person need not be charged under the
different accessory statute.
However, to the extent this Court finds the
charging documents or ultimate conviction ambiguous,
which it sounds like some members of the Court may
believe it is, this is a question of California law, as
a first point; but moreover, the question here is
whether the Government has met its burden under Taylor
and Shepard. And under Taylor and Shepard the inquiry
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is whether it can necessarily be shown that someone was
convicted of a generic definition; and here, given the
ambiguity under California law, it can't be said that --
JUSTICE BREYER: But what do we do about
that? No, you have no interest in answering my
question, but the question, it seems to me under the
law, here is what I do -- and I'm a good deference
lawyer, as you are. I simply look at the statute. And
I imagine some very weird case that the statute could
cover where the person wouldn't have the right intent or
it wouldn't be theft or it would be some odd thing.
There's no possibility in the world that applied to my
client. But most charges are simply stated in the
wording of the statute. And most judgments simply say
guilty.
So I say "see, you see, it is theoretically
possible." And now when you decide what really
happened, Court, you're supposed to look only to the
charging documents in the judgment; and you can't say it
didn't. So the whole congressional scheme is basically
put to the side.
Now what's the answer to that problem,
insofar as you want to answer it?
MR. MEADE: Of course, I'd be happy to. I
don't think it puts the whole scheme aside. Remember,
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the Government gets two bites at the apple here. They
get a first bite on the categoric approach where all
they need to show is that all the elements are within
the generic definition of the crime. We'd be dealing
with a different case if the person was charged under
the penal code which doesn't require -- which requires
intent to steal and which does not cover accessories
after the fact. So the Government gets a free pass on
round one.
On round two, on the modified categorical
approach as we're discussing here, the Government gets a
second chance to -- based on actual documents in the
record to establish whether there's enough there.
Here the Government relies on the charging
document in an abstractive judgment, but the Government
does not put in a plea colloquy, it does not put in plea
allocution, it does not put in any other documents that
would establish under Shepard that someone was
necessarily convicted of the crime. So what -- the
Government here is asking to be relieved of its burden
of proof which it has in this case. I would like to
note that on the --
JUSTICE SCALIA: But the charging document
you acknowledge would suffice if it indeed is California
law that in order to convict as an accessory you have to
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charge as an accessory? You would acknowledge this?
MR. MEADE: Yes. I would acknowledge the
charging document unto itself, but not taking into
account the fact that the charging document and the
conviction not match.
I would note, though, that the Court need
not go to the modified categorical approach, and I would
say should not. This is something that the board -- the
agency has been able to deal with for 60 years or so,
dealing with the actual documents, trying to figure out
a whether particular charging document is or is not
enough. In Shepard itself, which actually dealt with
the question of which documents could or could not be
considered, the Court did not go further and look at the
next step and decide whether those particular documents
did or did not meet the definition in that case.
I'd also like to note to the extent that
this Court finds California charging law ambiguous or
hard to understand, under the principle of Jett v Dallas
Independent School District, the circuit courts are in a
better position to consider a matter of California State
law in the first instance.
So our accessory argument is that the Court
should decide the categorical approach alone on the
accessory after the fact ground and remand to the agency
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for consideration under the modified approach.
I'd like to also stress that if the Court
were to affirm on that ground it would be a very narrow
holding. There's only two other statutes in California
that expressly include accessories after the fact.
California's car theft statute does not include
accessories after the fact.
JUSTICE ALITO: In order to agree with you
on the accessory point, though, don't we have to decide
two disputed issues of California law? Whether
accessory here in this statute means accessory after the
fact, and whether if somebody is charged under that
statute as an accessory, that has to be alleged
specifically in the indictment, or whether it is just
sufficient to charge the person with the offense.
MR. MEADE: The Court would only need to
decide that first question, not the second question.
The first question is what is the meaning of accessory
under California law. That is sufficiently clear in our
view that the Court need not send it back to the Court
of Appeals. The second question under the modified
approach is outside the core of what this case is about,
and we suggest that that should be remanded to the Ninth
Circuit or the agency.
CHIEF JUSTICE ROBERTS: Has anyone ever been
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prosecuted as an accessory after the fact to joyriding?
MR. MEADE: I do not know one way or the
other, Your Honor. But I also note that we don't know
whether anyone has been prosecuted under 108.51 on that
ground, we also do not know whether someone has been
prosecuted under Section 32, which is the accessory
after the fact provision, or more generally on that
ground.
CHIEF JUSTICE ROBERTS: But if no one has
ever been prosecuted as an accessory after the fact for
joyriding, we'd really have to go out on a limb to
construe this charging document which charges him as a
principal as actually meaning to charge him as an
accessory after the fact, wouldn't we?
MR. MEADE: Not necessarily, because what we
have is a statutory provision that clearly covers
accessories after the fact. We do not have an example
of someone who was charged under 108.51, but there are
many reasons why that may not show up, partly because
the charging documents don't need to so provide, in our
view. So figuring out who was and who was not an
accessory after the fact or a principal under 108.51 is
not so easy to distill.
JUSTICE BREYER: Have you been able to think
of any examples where a person could have been,
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convicted of this statute, under the statute would he
actually have been some kind of accessory to another
person committing another crime, and the natural and
probable consequence was that that other person would
violate this statute?
MR. MEADE: So --
JUSTICE BREYER: Have you been able to think
of one?
MR. MEADE: Sure. So you're switching to
the natural and probable consequences?
JUSTICE BREYER: Yes, I am.
MR. MEADE: Yes, and I thank you for that
question. Someone who, say, could aid and abet, or have
the intent to aid and abet purchasing alcohol for a
minor, a natural and probable consequence of that could
be joyriding.
I would also like to -- turning to the
question of the natural and probable consequences
doctrine, the government is incorrect when it states
that the majority view accepts the natural and probable
consequences.
JUSTICE ALITO: Are there cases that hold
that the natural and probably consequences of purchasing
alcohol for a minor could be joyriding?
MR. MEADE: We have not found a case on
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that. However --
JUSTICE ALITO: Or anything else that
somebody might do after getting intoxicated?
JUSTICE SCALIA: Partying maybe I would
understand. I don't know about joyriding.
MR. MEADE: The natural and probable
consequences theory cuts across a wide variety of
crimes, as the government points out. So it would also
cover the different provisions under the INA such as
burglary, theft, and other provisions as well. The
government, though, is incorrect in stating that the
natural and probable consequences is a majority view.
Even in its brief, the government only sets forth 22
states that it says apply that analysis.
Those 22 states that the government cites,
many of them do not support the proposition that it is a
majority view or even applied in those states. For
example, just to give a couple of examples, the
government cites Missouri as a state that applies the
natural and probable consequences doctrine. However in
Missouri, in the very case cited by the government,
People v. Evans, the court rejects the use of the
natural and probable consequences doctrine and says,
"The use of the natural and probable consequences
doctrine was error as a matter of law."
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The same is true -- and that's on the same
page the government cites. The same is true with
respect to Maryland, where the same footnote that the
government cites rejects the natural and probable
consequences doctrine in favor of a narrower theory.
It's also true in Idaho, Louisiana, Georgia and Texas,
also do not apply the natural and probable consequences
doctrine.
So what, the government here is seeking to
hold someone guilty of a theft offense as an aggravated
felony without the requisite mens rea, and something
that's a minority view of the states.
Just to put this into context, under the
natural and probable consequences doctrine, it's as if
California passed a statute saying that in some cases
someone can be guilty of burglary without the mens rea
of burglary, or saying that one can be guilty of theft
without the mens rea of theft.
CHIEF JUSTICE ROBERTS: Your argument isn't
limited to theft offenses, correct? That would cut
across all of these areas in which the federal law
refers, in which a Taylor analysis would apply?
MR. MEADE: Yes, it would. So it would not
necessarily apply to the non-Taylor provisions such as
the one --
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CHIEF JUSTICE ROBERTS: It would mean we
could not rely on the categorical approach in almost any
of those cases?
MR. MEADE: As -- on the first step, yes.
CHIEF JUSTICE ROBERTS: Yeah, the
categorical approach.
MR. MEADE: It does mean that, Your Honor.
JUSTICE BREYER: Well then, what's an
example of where you're held guilty on the ground that
you aided and abetted natural and probable -- somebody
did X and the natural and probable consequence was
Y. Because after all, you are properly held guilty when
you do an act and a known consequence is Y. So what's an
example of that?
MR. MEADE: Sure. I'd be happy to give a
number of examples.
JUSTICE BREYER: One would be good enough.
The best one.
MR. MEADE: If you intend to aid and abet
robbery, you intend to aid and abet robbery, you can be
held liable for an unintended rape of another. If you
aid and abet --
JUSTICE BREYER: That's a known and probable
consequence? That's a probable consequence?
MR. MEADE: Yes.
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JUSTICE BREYER: Well then, maybe the
problem is that they don't define natural and probable
consequence properly.
MR. MEADE: Well, this is how it's applied
under California law. To give another example --
JUSTICE SCALIA: Wait a minute. That's a
real case?
MR. MEADE: That's a real case, and I'll
give you the cite. People v. Banks, 2002 Westlaw 192,
720. There's another case cited in our brief, aid and
abet robbery, natural probable consequence, sex
offenses, that's the People v. Nguyen case. Another
example, a person who has the intention to aid and abet
battery, beating someone up, can be held guilty for an
unintended robbery.
And to show how stark this is, this is in
California, it's broader than even the common law.
JUSTICE SCALIA: It sounds like the doctrine
of unnatural improbable consequences.
(Laughter.)
JUSTICE BREYER: You're asking us to say
that not only do the states have to have the same rule,
but they have to interpret the rule the same way. This
would make the application of the categorical approach
impossible. You'd have to look not only to the
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expression of the rule of law by the state courts, but
to its application by the state courts in every
jurisdiction. I mean, that just makes the whole
enterprise infeasible, it seems to me.
MR. MEADE: What the Taylor analysis looks
to is what's in the heartland of a certain crime, and
here what's in the heartland of aiding and abetting.
And what we have here is an aberrant doctrine of
California law that is outside the mainstream.
JUSTICE SCALIA: Let me tell you, what's
aberrant is the California interpretation of the
standard doctrine that is used in many states, which is
you intend the natural and probable consequences of what
you do. And if California has, some California courts
have come up with weird notions of that, I don't know
that that destroys the uniformity among the states.
MR. MEADE: Just to briefly respond?
CHIEF JUSTICE ROBERTS: Yes, sir.
MR. MEADE: The rule that you state is that
one intends the natural and probable consequences of
one's own acts. We do not dispute this rule. The
question is as applied to aiding and abetting liability,
and California is one of a handful of states that
applies the natural and probable consequences doctrine
to aiding and abetting liability, which has the novel
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and aberrant consequences of holding people liable even
if they don't have the requisite mens rea for the
offense.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Meade.
Mr. Himelfarb, you have four minutes
remaining.
REBUTTAL ARGUMENT OF DAN HIMMELFARB
ON BEHALF OF PETITIONER
JUSTICE KENNEDY: Would it be completely
inconsistent with Taylor versus United States for us to
say that when there is a novel or an unusual theory of
potential liability such as proposed by the respondent,
which would exonerate him from application of this
statute, that he has the burden to show that that's what
happened?
MR. HIMMELFARB: Well, we think --
JUSTICE KENNEDY: Would Taylor allow us to
do that sort of burden shifting?
MR. HIMMELFARB: Well ultimately,
Justice Kennedy, we don't think that Taylor controls on
the question of what Congress's intent was under the
INA. Ultimately Taylor was a question about Congress's
intent in enacting the Armed Career Criminal Act, and
every aspect of that decision was tied in some way to
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Congress's intent there.
We think Congress's intent in enacting the
aggravated felony provision of the INA has to be that it
didn't intend that you would have these highly arcane
comparisons of some general definition of aiding and
abetting, which either would or wouldn't include the
infinite variety of formulations of aiding and abetting.
JUSTICE KENNEDY: And so your general rule
to accomplish your objective would be?
MR. HIMMELFARB: It's the one I suggested
when I was up here earlier, which is a holding by this
Court that Congress intended to include aiding and
abetting liability in the aggravated felony provision,
and intended to cover whatever formulations were extant
in 1988 when the provision was enacted. The Court can
leave open the possibility that if in some future case,
some jurisdiction were to enact an extraordinarily far
reaching theretofore unheard of formulation, for
example, anybody who intentionally insists -- assists --
without regard to whether the person even knew about the
principles of criminal conduct, could be held liable as
an aider and abettor. In that circumstance, it might
well be the case that a state, by adopting such a far
reaching theory of aiding and abetting, would in effect
forfeit the right to have any of the subsequent
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provisions in its criminal code treated as aggravated
felonies unless the government in the immigration case
could somehow prove that the alien wasn't convicted as
an aider and abettor.
JUSTICE SOUTER: I think that, the problem I
guess that I have with your argument, is that the theory
of Taylor and as carried forward in Shepard was that
there was a concept of a generic offense. And when
aiding and abetting liability is extended in the natural
and probable consequences theory, we face the fact that
regardless of what the actual count is, even on your
count, there isn't even a majority of states that do it.
And I have difficulty seeing how that can, therefore,
form an element of a generic offense when it is -- or a
generic concept of the offense -- when it is a minority
view.
MR. HIMMELFARB: Well, even under our
fallback position, Justice Souter, under which you would
have to come up with some general definition of aiding
and abetting and then make a comparison with the law of
aiding and abetting in the jurisdiction of conviction.
And even if it's, you know, 20-20 or 18-18 among the
states on this particular wrinkle in the law of aiding
and abetting, we think it is frankly dispositive in this
case, that it is the Federal rule, and my friend
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Mr. Meade has not disputed that.
We think it's just inconceivable that
Congress would have intended that in a Federal criminal
case if you're charged with murder, you can be convicted
under a natural and probable consequences theory such
that you could conceivably spend life in prison the same
way a principal would, and yet you would not be subject
to the same immigration consequences as somebody
convicted of the principal offense of murder, and
indeed, that you wouldn't even be able -- the government
wouldn't be able to --
JUSTICE SOUTER: Why didn't we simply take
the closest Federal definition as being the touchstone?
MR. HIMMELFARB: Well, I -- in Taylor?
JUSTICE SOUTER: Yes.
MR. HIMMELFARB: I think that one of the
problems in Taylor was that there really is no Federal
definition of burglary. That's part of it. The other
part of it is to some extent, the Court did rely on the
Federal definition in Taylor. The original version, the
original version of the office statute defined burglary,
and it defined it in a generic way which was broader
than the common law rule.
JUSTICE SOUTER: Was Taylor an immigration
case?
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MR. HIMMELFARB: No, it wasn't. It was a
criminal case.
JUSTICE SOUTER: So you are in effect, you
would say that the rule should be, or the modified
Taylor rule for application here should be that it's
either got to fall within the concept of the Federal
offense, or in default of there being a comparable
Federal offense, a generic offense defined by reference
to state practice?
MR. HIMMELFARB: May I answer the question?
CHIEF JUSTICE ROBERTS: Certainly.
MR. HIMMELFARB: Our primary submission is
that in the context of aiding and abetting, there
shouldn't be any generic definition beyond what the
states apply, whatever the formulation. Our fallback
position is essentially what you just described, and we
think we should prevail under it because we think we
have the Federal rule. We think we have the majority
rule in the states. And we have the common law rule as
well.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Himmelfarb. The case is submitted.
(Whereupon, at 11:08 a.m., the case in the
above-entitled matter was submitted.)
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