If several acts are charged, and any one of them would be sufficient if proven to sustain the jury verdict, the court must assume the least turpitudinous act was the basis of the verdict where the record does not conclusively establish which act the jury found true. [Matter of R, 6 I. & N. Dec. 444, 1954 WL 7903 (BIA 1954) (where an indictment charges several acts, any one of which would be sufficient to support the general verdict of guilty rendered by the jury, the inference most favorable to the noncitizen must be drawn as to which of the acts formed the basis of the conviction).] Legally, the count on which respondent was indicted creates only one offense. The offense could have been committed by any one of the nine acts set forth in the count. It was necessary to find only the existence of one act to obtain a conviction. The jury rendered a general verdict of guilty. We cannot go behind the record to determine what specific issues were presented to the jury and what specific act or acts they found to exist (United States ex rel. Teper v. Miller, supra). Since the verdict was a general one and did not specify the act or acts on which it rested, it cannot be determined that respondent was not convicted for the acts which do not relate to compelling (Stromberg v. California, 283 U.S. 359, 367-370, 75 L. Ed. 1117; Terminiello v. Chicago, 337 U.S. 115, 93 L. Ed. 1131). The finding that respondent was guilty of the "offenses" on count one, was of course surplusage, for there is only one offense. (Even if this finding could be given weight, it is meaningless for the purposes of this discussion, for it may have referred to any two or more of the six acts set forth which do not involve the intent "to compel.") Compulsion is not a material element of the crime (cases cited infra). The burden of establishing that conviction was for a particular act is upon the Government. On this record it cannot be found that the transportation was for "compelling" the woman to engage in unlawful sexual intercourse. Because of these facts, we are not justified in drawing the inference most unfavorable to the alien. We must in fact draw that most favorable to him. We must assume that he was convicted for transportation for the purpose of inducing or enticing the commission of the act.
-Text taken from Matter of R, 6 I. & N. Dec. 444, 450-451, 1954 WL 7903 (BIA 1954). This analysis holds true wherever the charge accuses the defendant of multiple offenses, as for example, that s/he committed "sale, transportation, and offering to sell" a controlled substance in violation of California Health & Safety Code § 11360(a). This charge contains three different offenses, each with distinct elements. If the verdict is a general one, and states only that the defendant is guilty of violating Health & Safety Code § 11360(a) as charged in Count I, then the noncitizen must be given the benefit of the doubt as to which of the three different offenses in fact formed the basis of the conviction.
CRIM DEF NEW EDITION 4.54(C). SURPLUSAGE
Matter of Perez Contreras, Int. Dec. No. 3194, 1992 WL 364792, at 3 & n. 4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was "surplusage"); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).
United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2001)(conviction for second-degree burglary constituted an aggravated felony for purposes of enhancing the sentence for illegal reentry, since by pleading guilty to Count One of the Information, Velasco-Medina admitted the facts alleged therein, which were sufficient to establish the unlawful entry into a structure with intent to commit larceny and any felony necessary to establish aggravated-felony burglary); United States v. Williams, 47 F.3d 993, 995 (9th Cir.1995); United States v. Dunn, 946 F.2d 615, 620 (9th Cir.1991); United States v. O'Neal, 937 F.2d 1369, 1373-74 (9th Cir.1991), overruled on other grounds by United States v. Sahakian, 965 F.2d 740 (9th Cir.1992). See also United States v. Franklin, 235 F.3d 1165, 1170 (9th Cir. 2000) (noting that document charging that Franklin "did willfully and unlawfully enter . . . with the intent to commit larceny" satisfied Taylor).