Safe Havens

 

(C)  Disjunctive Statutes.  The second type of divisible statute is one which itself contains no subdivisions, but nonetheless contains a number of separate offenses, each of which has different elements necessary to constitute the offense.  This type of divisibility may occur within a single statute without subdivisions, or even within a single subdivision of a statute.  One important test for whether a statute is divisible in this sense is whether it is written in the disjunctive: the statute may be violated by doing A, or B, or C.  For example, one court stated:  “Since subdivision 11 is written in the disjunctive, it appears that the acts described therein are separable.”[38]  In this case, the purpose of the divisible-statute analysis is to determine “which of a series of disjunctive elements a defendant’s conviction satisfies.”[39]

 

In California, one of the controlled substances statutes criminalizes sales, offer to sell, transportation for personal use, or gratuitous distribution.[40]  Each of these constitutes a different offense, despite the fact that they are all contained within California Health & Safety Code § 11360(a), which itself has no numbered subdivisions.  The offense of sale of a controlled substance, for example, contains elements completely different and distinct from the offense of transporting a controlled substance, or the offense of offering to sell a controlled substance.

 

In United States v. Rivera-Sanchez,[41] the Ninth Circuit held that this statute is divisible because it includes several distinct offenses, each with different elements.  One of these is “offer to sell,” which the Ninth Circuit had previously held does not constitute a controlled substances offense or a drug-trafficking aggravated felony.[42]  Transportation has also been held not to be an aggravated felony, since it may be violated by transportation for personal use only (thus failing the minimum conduct test), and there is no federal offense of transportation.[43]  If the record of conviction does not establish that the defendant pleaded guilty to a set of elements under the divisible statute that constitutes an aggravated felony, the conviction is not an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation.[44]  A conviction for a violation of this divisible “sales” statute under California law will therefore be a “safe” non-aggravated felony plea so long as the record of conviction does not establish which of the several included offenses is the specific basis of conviction under the divisible statute. 

 

Another example is Calif. Vehicle Code § 10851, which defines “vehicle taking” as a taking with intent to deprive the owner of possession “permanently” (CMT) or “temporarily” (not CMT).[45]  Faced with this divisible statute, the court would be allowed to look to the charging documents and plea agreement or transcript to determine whether the noncitizen pleaded to the set of elements that includes a “permanent” taking or the set that includes a “temporary” taking. 

 

            When dealing with this type of divisible statute, the approach is the same as when the different subdivisions are separately numbered: the record of conviction is examined to determine the elements that were actually proved to sustain the conviction,[46] and then that set of elements is examined to determine whether the offense falls within the charged ground of removal.

 

            Commonly, while such a statute may be framed in the disjunctive (i.e. “false or fraudulent”), the criminal charging documents often state the offense in the conjunctive (“false and fraudulent”).[47]  The immigration authorities often read a plea to a charge phrased in the conjunctive to mean that the noncitizen pleaded guilty to all of the offenses in the charge, even where it might be impossible for the noncitizen to commit both offenses (i.e., theft with intent to temporarily and permanently deprive).  However, this interpretation of a charge in the conjunctive is not correct.[48] 

 

            As the Third Circuit has stated,

 

             We recognize that it is common practice for United States Attorneys’ Offices to pursue a strategy of ‘plead in the conjunctive, but instruct in the disjunctive’ in order to ‘avoid uncertainty.’ This tactic relies on the fact that when a statute specifies several alternative ways in which an offense may be committed, the indictment may allege the several ways in the conjunctive, and this fact neither renders the indictment bad for duplicity nor precludes a conviction if only one of the several allegations linked in the conjunctive in the indictment is proven.  The use of the conjunctive in the indictment is “to avoid uncertainty” only; just as the Government may obtain a conviction if “only one of the several allegations linked in the conjunctive in the indictment is proven,” so may a defendant plead guilty to only one of the allegations required to prove an element of her crime.[49]

 

In Hirsch v. INS,[50] the Ninth Circuit held that a false-statement conviction did not constitute a “crime involving moral turpitude,” since the statute violated[51] was phrased in the disjunctive, prohibiting a false statement or a fraudulent statement.  Even though the charging documents were phrased in the conjunctive, the court held that, in finding guilt, the jury could have convicted the defendant if it found that the defendant had “knowingly” but without evil intent made a “false” but not a “fraudulent” statement.

 

The court based its decision on the elements as defined in the statute, and discounted the language of the charge contained in the indictment.  It held that even though the indictment itself was phrased in the conjunctive, charging that the offense was done “unlawfully, wilfully and knowingly” and charging that the defendant had made “false and fraudulent statements,” this use of the conjunctive was not enough to show moral turpitude in support of an order of deportation.[52]

 

            The BIA agrees with this analysis:

 

In an indictment the elements of the crime can be set forth in the conjunctive; however a defendant can be found guilty upon proof of the commission of any one of the acts charged. (United States v. Wells, 180 F. Supp. 707 (Del. 1959)). Under such circumstances, there is a question as to whether the conviction was based on the existence of one element rather than another. We cannot assume that the respondent pleaded guilty to fraudulent conduct rather than false conduct. Since the burden is on the Service, we must take the case in the light most favorable to the respondent and assume that the plea of guilty concerned a false rather than a fraudulent statement.[53]

 

Therefore, even if a noncitizen entered a plea to violation of a disjunctive divisible statute, under a charge phrased in the conjunctive, the mere use of “and,” rather than “or,” in the charge does not establish that the noncitizen has necessarily been convicted of a deportable offense.  Clearly, when the charge is phrased in the conjunctive, but the plea agreement or plea transcript shows that the noncitizen pleaded to the non-deportable portion of the statute, the conviction will not trigger deportability.  If the record of conviction does not clarify which portion of the statute the noncitizen admitted or of which s/he was found guilty, the government, which bears the burden of proof in deportation proceedings, should lose because it has not unequivocally established that the conviction was for the deportable portion of the divisible statute.

[38] Matter of P, 3 I. & N. Dec. 290, 297 (BIA 1948); see also United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (checking box on immigration form which has statement next printed next to it saying that the noncitizen defendant was a U.S. citizen or national could not form basis for prosecution for falsely claiming citizenship under 18 U.S.C. § 911; “the district court violated a basic principle of criminal law by allowing the government to prove that an individual committed the charged offense by showing that he committed either that offense or some other act.”).

[39] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[40] California Health & Safety Code § 11360(a).  The other California sales statutes, such as Health & Safety Code § 11352(a) (sale, distribution or transportation of narcotics such as heroin and cocaine) and § 11377(a) (sale of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a)(marijuana).

[41] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[42] Ibid., citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999) (not an aggravated felony); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense under a statute that proscribed solicitation to commit any offense did not constitute a drug-related conviction).  

[43] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999); Saleres v. INS, 2001 U.S. App. LEXIS 25992 (9th Cir. 2001).

[44] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[45] See Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000) (conviction under California Vehicle Code § 10851 is a theft offense so as to constitute an aggravated felony); Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (domestic violence ground of deportability). 

[46] See, e.g., United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (court may look to indictment to determine which of a series of disjunctive elements defendant’s conviction satisfies in determining whether conviction is a “crime of violence”; as phrased, indictment did require proof of the use, attempted use or threatened use of physical force required to find conviction was a crime of violence).

[47] The Department of Justice Criminal Manual instructs U.S. attorneys to “plead in the conjunctive, but instruct in the disjunctive.” Valansi v. Ashcroft, 278 F.3d 203, 216, n.10 (3d Cir. 2002), quoting from Dep’t of Justice Criminal Resource Manual § 227.  Courts have also recognized that the mere use of the disjunctive or conjunctive is not necessarily determinative in statutory construction. See United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (interpreting conjunctive as disjunctive in sentencing guidelines “crime of violence” definition); Alaska v. Lying, 797 F.2d 1479, 1483 n.4 (9th Cir. 1986).

[48] In fact, it appears that a charging document is never sufficient, on its own, to establish the elements to which a noncitizen entered a plea of guilty.  See United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (“[I]f a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient.”); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (“It cannot be disputed that Count One’s language sets out the generic elements of burglary . . . .  The Information alone, however, cannot support a finding that Velasco-Medina’s burglary conviction was an aggravated felony. 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.”); United States v. Belless, 338 F.3d 1063, 1068, 1069 (9th Cir. 2003) (“[T]he record indicates that Belles was charged with conduct that was a violent act and not merely a rude or insolent touching. But the record does not reveal the conduct to which he pleaded and for which he was convicted. Accordingly we cannot conclude that the trier of fact ... in this case necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense.”). 

[49] Valansi v. Ashcroft, 278 F.3d at 216, n.10 (emphasis added, citations omitted).  See also In re Bushman, 1 Cal.3d 767, 775 (1970) (“Where a statute such as a Penal Code section lists several acts in the disjunctive, any of which constitutes an offense, a complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty.  Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts.” (Citations omitted).

[50] Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962).  See also United States v. Bonanno, 852 F2d. 434, 441 (9th Cir. 1988).

[51] Former 18 U.S.C. § 80, now 18 U.S.C. § 1001.

[52] Ibid.

[53] Matter of Espinosa, 10 I. & N. Dec. 98, 100 (BIA 1962) (18 U.S.C. § 1001 is divisible as it punishes false or fraudulent statements).  See also Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967) (Washington State conviction of abduction of a female under age 18 for purposes of marriage was held not to involve moral turpitude since offense could be committed with the consent of the female; charge was in the disjunctive, and record of conviction did not establish which, so minimum conduct was used for analysis).