(B)  Charging in the Conjunctive.  Commonly, even though a statute may be framed in the disjunctive (i.e., “false or fraudulent”),[191] the criminal charging documents often state the offense in the conjunctive (“false and fraudulent”).[192]  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 different offenses in the conjunctive charge, even where it might be impossible for the noncitizen to commit all included offenses (i.e., theft with intent to temporarily and permanently deprive).  However, this interpretation of a charge in the conjunctive is not correct.

 

                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.[193]

In Hirsch v. INS,[194] the Ninth Circuit held that a false statement conviction did not constitute a “crime involving moral turpitude,” since the statute violated[195] 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 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.[196]

 

                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.[197]

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 both offenses.  Clearly, when the charge is phrased in the conjunctive, but the plea agreement or plea transcript shows that the noncitizen pleaded guilty only to the non-removable portion of the statute, the conviction will not be held to trigger removal.  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 party with the burden of proof should lose because the set of elements of a removable conviction have not unequivocally been established.  See also § 16.18, infra, for a discussion of the conjunctive “and” as surplusage.

 

                When the charge is made in the disjunctive, the party with the burden of proof loses the divisible statute analysis[198] unless it appears elsewhere in the record (e.g., the plea agreement) that the plea was specifically to one item in the disjunctive set (at which point the minimum conduct analysis is applied).

 

[191] See Prince v. Jacoby, 303 F.3d 1074, 1080-81 (9th Cir. 2002) (explaining that the use of the disjunctive “or” suggests that terms in a sequence should not be interpreted as synonyms).  Cf. United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (“Karaouni contends that no rational trier of fact could find beyond a reasonable doubt that his verification of the printed statement on the I-9 Form constituted a violation of § 911 because the printed statement was phrased in the disjunctive.  According to Karaouni, by checking the box next to the printed statement, which the government presumably drafted with care, he merely claimed that he was a citizen or a national, not that he was a citizen and not that he was a citizen and a national.”).

[192] 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).

[193] Valansi v. Ashcroft, 278 F.3d at 216, n.10 (emphasis added, citations omitted).  See also Malta-Espinoza v. Gonzales, 478 F.3d 1080 (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. “); Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005) (“Reference in the indictment to “stolen, converted and fraudulently obtained property,” as opposed to “stolen, converted or taken by fraud,” as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty.”); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) (“Where a statute specifies two 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.”); 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).

[194] Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962).  See also United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988).  But see United States v. Smith, 390 F.3d 661 (9th Cir. 2004); United States v. Williams, 47 F.3d 993 (9th Cir. Jan. 30, 1995), which seem to stand for the proposition that “when a defendant pleads guilty . . . to facts stated in the conjunctive, each factual allegation is taken as true.”  Smith at 665.  At least one case has, in dictum, applied this to the immigration context. United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. Aug. 1, 2006).  However, these cases ultimately rely upon language in United States v. Mathews, 390 F.3d 161, 164 (9th Cir. 1987), which was not addressing this issue, but rather whether unstated jurisdictional elements of a conviction were included in a plea, even if not stated in the charges.

[195] Former 18 U.S.C. § 80, the predecessor to 18 U.S.C. § 1001.

[196] Ibid.

[197] 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 offense was established, so minimum conduct was used for analysis).

[198] See, e.g., United States v. Almazan-Becerra, 482 F.3d 1085 (9th Cir. Mar. 29, 2007) (California conviction of violating Health & Safety Code § 11379(a) did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal re-entry sentence under USSG § 2L1.2(b)(1)(B), because the charge alleged sale or transportation or offer to sell methamphetamines in the disjunctive, and therefore a plea to that charge established only one of the three possible sets of elements, only one of which constituted a drug trafficking crime).

Second Circuit

DIVISIBLE STATUTE ANALYSIS - WHETHER STATUTE IS DIVISIBLE - MASSACHUSETTS STATUTE PROHIBITING ASSAULT ON POLICE OFFICER AND NUMEROUS OTHER PUBLIC OFFICIALS CONSTITUTED DIVISIBLE STATUTE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, constituted divisible statute - allowing analysis of specific offense of assault on police officer, as distinguished from assault on other possible victims, because "the various categories of public safety officers protected by the statute are listed sequentially, each separated by a comma, and are phrased in the disjunctive."), quoting Canada v. Gonzales, 448 F.3d 560, 568 (2d Cir. 2006); see Abimbola v. Ashcroft, 378 F.3d 173, 177 (2d Cir. August 5, 2004) ("When the criminal statute at issue encompasses some classes of criminal acts that fall within the federal definition of aggravated felony and some classes that do not fall within the definition, the statute is considered divisible." (internal quotation marks omitted)).

Fifth Circuit

NATURE OF CONVICTION - CONJUNCTIVE OR DISJUNCTIVE
United States v. Moreno-Florean, 542 F.3d 445, 452-453 (5th Cir. Sept. 8, 2008) (In California, "[a] guilty plea admits every element of the crime charged." People v. Wallace 33 Cal.4th 738, 16 Cal.Rptr.3d 96, 93 P.3d 1037, 1043 (2004) (quotations omitted). Based on Wallace,one might argue that Moreno-Florean's guilty plea admitted every conjunctive element alleged in the indictment. This argument is misplaced, however, because "[i]t is well settled [in California] that where the statute enumerates several acts disjunctively, which separately or together shall constitute the [criminal] offense, the indictment, if it charges more than one of them ... in the same count, should do so in the conjunctive." People v.Turner, 185 Cal.App.2d 513, 8 Cal.Rptr. 285, 288 (1960) (citing People v. O'Brien, 130 Cal. 1, 62 P. 297, 298 (1900)); accord In re Bushman, 1 Cal.3d 767, 775, 83 Cal.Rptr. 375, 463 P.2d 727 (1970). Furthermore, if the indictment alleges elements in the conjunctive, the defendant can be convicted if the evidence establishes any set of disjunctive elements that together constitute the criminal offense. See Turner, 8 Cal.Rptr. at 288; see also Bushman, 83 Cal.Rptr. 375, 463 P.2d 727 ("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."). Moreno-Florean's guilty plea, when viewed in conjunction with the language of the indictment, does not narrow the statute of conviction for purposes of the categorical approach.")

NATURE OF CONVICTION - CONJUNCTIVE CHARGES
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 3173614 (5th Cir. Oct. 31, 2007) (looking to Georgia law to determine whether a conjunctive charge of violating a disjunctive statute indicates a plea to "possession and sale" or "possession or sale"; finding that under Georgia law, a plea to a conjunctive charge is a plea to all averments of fact).

DIVISIBLE STATUTE - CONJUNCTIVE CHARGE
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (plea to counting charging noncitizen "did unlawfully, knowingly and intentionally deliver, to-wit: actually transfer, constructively transfer, and offer to sell a controlled substance, to-wit: COCAINE in an amount by aggregate weight, including any adulterants or dilutants of less than 28 grams ...." not sufficient to establish, for illegal re-entry sentencing purposes, that offense was a drug trafficking crime, since the plea may have been to the offense of offering to sell a controlled substance; "[a] disjunctive statute may be pleaded conjunctively and proven disjunctively."), internal citations omitted.

Note: after noting circuit split on this issue, the court resorted to examination of Texas criminal law.

RECORD OF CONVICTION - DISJUNCTIVE - SURPLUSAGE
Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) (BIA found conviction to be under one prong of a divisible statute because the judgment mentioned the use of a firearm, but the Fifth Circuit found it to be under another, based on the language of the complaint), compare Omari v. Gonzales, 419 F.3d 303, 309 n.10 (5th Cir. 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud" as recited in the statute, does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."); see also United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (the phrase in the charge describing how the offense was committed is only relevant for "notice" purposes, and cannot be considered in determining whether the offense is a crime of violence).

Lower Courts of Fifth Circuit

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGING
Kitchens v. State, 823 S.W.2d 256, 258 (Texas. Crim. App. 1991) (conjunctive pleading represents an alternative pleading of the differing methods of committing one offense" and allows the jury to return "a general verdict if the evidence is sufficient to support a finding under any of the theories submitted"). See also Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud" as recited in the statute, does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty. See Valansi, 278 F.3d at 216 n.10; United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972)").

Eighth Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Alonzo v. Lynch,___ F.3d ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) (Iowa convictions for domestic abuse assault, third or subsequent offense, in violation of Iowa Code Annotated 708.1, a divisible statute, did not categorically constitute crimes of moral turpitude, since a single conviction of that offense is not necessarily a crime of moral turpitude). See Cisneros"Guerrerro v. Holder, 774 F.3d 1056, 1061 (5th Cir. 2014). Note: The court noted, but made no decision on, the issue of whether conviction of multiple non-CMT offenses can arise to the level of a CMT. The court merely held that the statute was divisible, and the BIA therefore should have applied the modified categorical analysis.

Ninth Circuit

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CONJUNCTIVE CHARGE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ n.14 (9th Cir. Jul.7, 2011) (The BIA apparently believed that Hernandez-Cruzs guilty plea admitted that he entered the building with the intent to commit larceny and the intent to commit some other felony. Although understandable, that conclusion is incorrect; under California law, Hernandez-Cruzs plea admitted that he had one of those intentions, but not necessarily both. See, e.g., People v. Moussabeck, 68 Cal. Rptr. 3d 877, 881-82 (Cal. Ct. App. 2007) ([W]hen the accusatory pleading describes the crime in its statutory language, but in the conjunctive (e.g., inflicted physical pain and mental suffering; inflicted corporal punishment and an injury), the allegation is treated as being in its statutory disjunctive. . . . [w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. (citation and quotation marks omitted, all but penultimate alteration in original)).).

CATEGORICAL ANALYSIS " CONJUNCTIVE CHARGE
United States v. Espinoza-Morales, 621 F.3d 1141, 1150 (9th Cir. Sept. 10, 2010) ("Even though the state charged Espinoza in the conjunctive-with accomplishing the penetration by means of force, violence duress, menace and fear-this charge could have supported a conviction based on duress alone."), citing In re Bushman, 463 P.2d 727, 732 (Ca. 1970).

CONVICTION - NATURE OF CONVICTION - DISJUNCTIVE COMPLAINT - MINUTE ORDER - MALTA - CONFLICT
Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. Sept. 24, 2009) (where a complaint was written in the disjunctive and the Ninth Circuit said, "but this minute order means he pled to all of it") Ngaeth doesn't mention Malta, so Malta isn't necessarily overturned, but there is a definite conflict.

ANALYSIS - DIVISIBLE STATUTE - CONJUNCTIVE CHARGE
United States v. Snellenberger, 548 F.3d 699 (9th Cir. Oct. 28, 2008) (per curiam) (en banc) (finding, in dictum, that a plea of no-contest to a charge phrased in the conjunctive (using "and") established conviction of all the conjunctive elements).

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGE OF TWO DIFFERENT POSSIBLE ELEMENTS UNDER A DISJUNCTIVE STATUTE DOES NOT ESTABLISH CONVICTION OF BOTH, BUT ONLY ONE OR THE OTHER, BECAUSE PLEA ADMITS ONLY THOSE ELEMENTS NECESSARY FOR CONVICTION AND EITHER OF THE ELEMENTS WAS SUFFICIENT FOR CONVICTION UNDER THE STATUTE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two 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.").

DIVISIBLE STATUTE - ALTERNATIVE MEANS OF COMMITTING SINGLE OFFENSE - WEAPONS - FEDERAL - USE OF FIREARM DURING DRUG TRAFFICKING
United States v. Arreola, 467 F.3d 1153 (9th Cir. Nov. 8, 2006) (18 U.S.C. 924(c)(1)(A), punishing "any person who, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," describes two alternative means to commit a single offense).

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE VS. DISJUNCTIVE CHARGING
The Ninth Circuit appears to be internally split on whether a charging document phrased in the conjunctive constitutes an admission of all the facts in the charge (i.e., a plea to a "permanent and temporary" taking necessary admits a permanent taking), or whether a plea to such language should be read in the disjunctive where the statute of conviction is disjunctive and the conjunctive charge is merely a device that allows the prosecution to prove either of the disjunctive options in the statute in order to convict (i.e., a plea to a "permanent and temporary" taking really means a plea to "permanent or temporary" taking, and the defendant is merely admitting that the taking was one or the other). Compare Malta-Espinoza v. Gonzales, 478 F.3d 1080 (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"); Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ("Where a statute specifies two 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."); 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), with United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) ("When a defendant pleads guilty ... to facts stated in the conjunctive, each factual allegation is taken as true. United States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995) (citing Mathews, 833 F.2d at 164). The count in Aguila-Montes's complaint to which he pleaded guilty stated that he entered an inhabited dwelling house and trailer coach and inhabited portion of a building.... Therefore, Aguila-Montes admitted to entering not only a dwelling house, but also a trailer coach and the inhabited portion of a building."); United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857-858 (9th Cir. 2005); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997). The disjunctive reading clearly seems more in keeping with reality, since a conjunctive reading may often result in the defendant admitting to two or more different acts or mental states that are mutually exclusive, contradictory or impossible.