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Supreme Court Decision Update - Gonzalez v. Duenas-Alvarez

carthief.jpgWe’ve got one new Supreme Court opinion today, Gonzales v. Duenas-Alvarez (PDF of the opinion). On its face, it looks like a case about immigration and deportation. But in reality, it’s about when “aiding and abetting” a theft is akin to committing the theft itself. And, since it comes from the Ninth Circuit, it’s really about the Supremes, once again, telling the Ninth to take its opinion and shove it.

QuizLaw Analysis: Basically, this case solidifies the fact that aiding and abetting a theft is pretty much always akin to actually committing a theft. As a practical consequence, this opinion means that if an alien helps someone steal some shit, the Feds can tell them to kiss this country good-bye, and can deport them the hell out. The Neo Cons are pleased as punch.

So what’s the immigration and deportation part of this case? Back in 2002, Luis Duenas-Alvarez was convicted under the California Vehicle Code for helping someone steal a car. That California provision makes it a crime for anyone to take a vehicle that’s not theirs, and also for anyone to be “a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing.” The Feds looked at this “aiding and abetting” conviction as a “generic theft offense” falling under the Immigration and Nationality Act and started deportation hearings. The Bureau of Immigration Appeals affirmed the decision to deport Duenas-Alvarez, and the cased moved up to the Ninth Circuit.

Wait - what’s this “generic theft offense” business? Well that’s the heart of this case. See, the Immigration and Nationality Act lists a bunch of offenses which qualify someone for deportation (and, as mentioned, theft is one such offense). When courts have looked at whether someone’s conviction falls under one of these listed offenses, they use an approach detailed by the Supremes in 1990’s Taylor v. US.

And what was Taylor about? In Taylor, the focus wasn’t on immigration, but on the Armed Career Criminal Act, which said folks with prior convictions should be given lengthy sentences for subsequent violent felony convictions, including burglary. The issue in the case was whether a state conviction for behavior which was like burglary fell within the Act’s “burglary” scope. The Supremes said it did, because Congress meant “burglary” to include “the generic sense in which the term is now used in the criminal codes of most States.” So the court shouldn’t focus on the facts of a particular case, but on how the state statutes generally define the crime in question. Only where the crime is defined broadly should the court look further, to decide if the broad definition includes things that are generally considered outside the scope of “burglary,” looking at things like the document charging the original crime and the jury instructions (to see, for example, if the jury was charged with, and found, the elements that make up burglary).

And so how is Taylor relevant here? While the appeal was pending in the Ninth Circuit, the boys and girls at the Ninth actually looked at this California Vehicle Code in another case. There, they decided that the provision was, in fact, more broad than the generic sense of theft, since it allows one to be convicted for aiding or abetting a theft even though “generic theft” has an explicit element that the accused took or controlled someone else’s property. In other words, the Ninth figured that there could be a case where someone could be convicted of aiding or abetting a theft without actually taking or controlling the stolen property, and thus what they’ve done is not the same as “generic theft.”

The Ninth then turned to Duenas-Alvarez’s appeal and remanded the case in light of this decision. The Feds jumped in and asked the Supremes to look at the Ninth’s reasoning now, before the lower courts got involved.

And who’s today’s lucky author? This opinion was written by Justice Breyer, and joined by everyone but Stevens. Although, Stevens did join some parts of it, filing an opinion concurring in part and dissenting in part. In fact, Stevens joined in everything we’ve talked about so far, and only declined to join in the section where the Supremes explicitly discuss the Ninth’s rationale and, ultimately, reject it (and even there, he only kinda-sorta dissents).

Ok, so aiding and abetting is part of generic theft? Yes - everyone but the Ninth Circuit agree on this (even Duenas-Alvarez agrees on this). The definition of generic theft is where someone takes or controls another’s property with the criminal intent to deprive the owner of their rights or benefits of ownership, even if the deprivation “is less than total or permanent.” And there’s room in there for aiding and abetting, says Breyer, particularly since all state and federal law now treats the main thief and the aiders and abettors the same.

Now, Duenas-Alvarez didn’t challenge this point, admitting that theft generally does include aiding abetting. Instead, his argument was that the California Vehicle Code provision in question went beyond all this, to include crimes which are not part of theft. His argument relied on a California doctrine which says that if you’re convicted of aiding and abetting a crime, you’re not just criminally responsible for the crime you were intending to help, but for any crime which is the natural and probable result of your intended crime. But the Supreme say that no other states have found a problem with this doctrine by rejecting it, and that quite a few states (and federal courts, as well) have actually used the doctrine in various instances (or at least allowed the jury to make very similar inferences). Which means that, in order to win here, Duenas-Alvarez would have to show that this California doctrine was special in some way, “for example, that California in applying it criminalizes conduct that most other States would not consider ‘theft.’”

Duenas-Alvarez said that’s exactly what’s going on with California, since the law can make you criminally liable for some consequential offense even if you had no intent to cause that consequence, and even if you didn’t know it would/could happen. He cites some California cases intended to bolster his position, but Breyer doesn’t think these Cali cases “extend significantly beyond the concept as set forth in the cases of other States.”

Besides, asks Breyer, is there a realistic probability that California would use this “natural and probable consequences” doctrine to criminalize conduct that falls outside of generic theft? There’s no evidence that that’s happened here, or in any other instance.

Finally, Duenas-Alvarez raised two other arguments about the California Vehicle Code provision, but the Court declined to get into any of it since it was outside the scope of what the Supremes originally agreed to hear the case on, namely, “whether ‘theft offense’ in the federal statute ‘includes aiding and abetting the commission of the offense.’” And that’s all the Supremes are gonna’ look at. And, as discussed, they say it is included. So Mr. Duenas-Alvarez can go home.

So what’s the deal with Stevens? Well he joined in the discussion of the background and of Taylor and in punting Duenas-Alvarez’s last two arguments for being outside of the scope of things. But he doesn’t join in the Court’s discussion of the California law. But it’s not that he particularly disagrees with what Breyer says. Rather, he thinks that “we would be well advised to withhold comment on issues of California law until after they have been addressed b the Court of Appeals in the first instance.” In other words, to his mind, this issue hasn’t properly worked its way through the lower courts yet, since the Ninth remanded it and the Supremes should hold off on sticking their big noses into it.