Malta-Espinoza v. Gonzales, __ F.3d __, 2007 WL 624532 (9th Cir. Mar. 2, 2007) ("It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts. See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ("Where a statute specifies to or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt."). All that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both. This fact need not affect our analysis, however, because under a categorical analysis we must determine whether the full range of conduct covered by the statute falls within the definition of crime of violence.") (emphasis added).



NOTE: Even if a reviewing court refuses to treat a conjunctive charge as divisible, Counsel can use this case to argue that where a charge was in the conjunctive, and the statute would otherwise be divisible, the minimum conduct analysis must be applied and the court must find that the offense does not trigger removal because the minimum conduct analysis, in the case of a conjunctive charge, requires examination of the least offense conduct, which would fall under the non-removable portion of the divisible statute.