Criminal Defense of Immigrants

 

(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).