(B)  Surplusage.  As discussed in § § 16.12 and 16.18, supra, language in a charge that goes beyond the exact words of the statute can sometimes be considered in making a divisible statute[304] determination, i.e., when the language serves the purpose of clarifying the portion of the statute of which the defendant was convicted.  A simple example of this would be a charge of “Burglary, to wit, entry with intent to commit theft,” where the burglary statute may be violated by entry with intent to commit “theft or any felony.”

 

                On the other hand, language included in the charge that does not serve that function should not be considered, but should be considered “surplusage.”  For example, where no element of the crime of conviction relates to the use of a weapon, a statement in the charge to which the defendant entered a plea, that the defendant had used a firearm, should be considered surplusage.[305] 

 

                A more interesting example would be a charge of “Burglary, where the defendant entered into a building with intent to commit bank fraud of over $10,000,” again based upon a statute that punishes burglary with intent to commit “theft or any felony.”  The charge can certainly be used to determine that the conviction was not for “theft.”  However, since the burglary statute only requires that the offense be theft or any felony, the statement that the offense involved fraud does not strictly speak to the “any felony” element beyond the fact that the offense did not involve theft.  Strictly speaking, the mention of “fraud” and any loss to the victim is surplusage.  Applying a divisible statute analysis, the courts should therefore not be allowed to use the charge to find the noncitizen was convicted of an aggravated felony fraud offense.[306]

 

[304] See § § 16.9-16.14, supra.

[305] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 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”).  But see Vue v. INS, 92 F.3d 696 (8th Cir. 1996), discussed at § 16.18, supra.

[306] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (fraud or deceit with a loss to the victim in excess of $10,000).

CONVICTION - RECORD OF CONVICTION - MINUTE ORDER
United States v. Snellenberger, 480 F.3d 1187 (9th Cir. April 3, 2007) (a minute order, coupled with a charging document, is not sufficient under Shepard v. United States, 544 U.S. 13 (2005), to establish the nature of a prior conviction as a crime of violence for purposes of sentence enhancement for a conviction of illegal reentry after deportation); see United States v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006) (a minute order is "not a judicial record that can be relied upon" to establish the nature of a prior conviction).

Note that in Snellberger, the minute order said "P.C. 459 - 1st degree," which the court correctly states means residential burglary and this is what the information said. But, the court said that a minute order is not sufficient under Shepard because it is not a plea agreement, plea colloquy where the defendant assented, or a comparable judicial document. The BIA in an unpublished opinion had said it is a "comparable" judicial document.

BIA

RECORD OF CONVICTION - CHARGE - ORIGINAL CHARGE AT TIME OF PLEA COULD NOT BE CONSIDERED AS PART OF RECORD OF CONVICTION SINCE AGE OF VICTIM DID NOT APPEAR IN FINAL, BACK-DATED CHARGE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

Second Circuit

RECORD OF CONVICTION - DISMISSED COUNTS -- FACTS CHARGED IN INDICTMENT NOT PART OF RECORD OF CONVICTION
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) ("We reminded the District Court that "[f]actual matters considered as a basis for sentence must have some minimal indicium of reliability beyond mere allegation," and that "an indictment is not meant to serve an evidentiary function. Its primary purpose is to acquaint the defendant with the specific crime with which he is charged...." Id. at 701 (internal quotations marks omitted) (alteration in original). In this case, the IJ and BIA relied upon a factual allegation in the charging instrument -- that James had sexual intercourse with a sixteen-year-old when he was twenty-two -- to conclude that James was convicted of sexual abuse of a minor. But this factual allegation was not "actually and necessarily pleaded" to in order to establish the elements of endangering the welfare of a child.").

Third Circuit

RECORD OF CONVICTION - CHARGING PAPERS
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (rejecting Governments argument that court can look to complaint, later superseded by an information, to determine the nature of the conviction; "The Government is correct that the criminal information, as the relevant charging document, is an appropriate record to consider. However, a court applying the modified categorical approach may only consider the charging document to the extent that the petitioner was actually convicted of the charges. Cf. Steele v. Blackman, 236 F.3d 130, 136-37 (3d Cir.2001) (holding that to find that an alien was convicted of an aggravated felony "there must be a judicial determination beyond a reasonable doubt of every element of a felony or a constitutionally valid plea that encompasses each of those elements"); see also Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir.2006) (declining to consider the total loss amount stated in a multi-count indictment where Alaka pled guilty to only a single count with a lower loss amount).").

Seventh Circuit

RECORD OF CONVICTION - CHARGING DOCUMENTS
Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir. Sept. 2, 2008) (complaint, indicating burglar of a vehicle with intent to commit theft, combined with clerks minutes showing entry of guilty plea, sufficient to find noncitizen had been convicted of aggravated felony attempted theft).

Eighth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " CHARGING DOCUMENT
United States v. Sanchez-Garcia, 642 F.3d 658, 2011 WL 2462958 (8th Cir. Jun. 22, 2011) (The charging document alone, however, does not prove Sanchez"Garcia's conviction because a charge is simply an accusation. It is not evidence of anything.); quoting United States v. Gammage, 580 F.3d 777, 779 (8th Cir.2009); see also United States v. Vasquez"Garcia, 449 F.3d 870, 873 (8th Cir.2006) (a charging document may sufficiently narrow an overinclusive statute when the fact of conviction is not contested).

Ninth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " CHARGING DOCUMENTS " AS CHARGED LANGUAGE
Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. Oct. 10, 2014) (When a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment, that link must be clear and convincing. Put another way, where, as here, the government bears the burden of proof to show by clear and convincing evidence that the 11351 conviction is a predicate offense [citations omitted], the government must demonstrate that the abstract clearly and convincingly shows that Medina pleaded guilty to the element as alleged in the complaint.).

AGGRAVATED FELONY - THEFT
Ramirez-Villalpando v. Holder, 601 F.3d 891 (9th Cir. April 9, 2010) (California conviction for violation of Penal Code 487(a), grand theft, is an aggravated felony theft offense for immigration purposes where abstract of judgment and complaint indicated noncitizen was convicted of stealing personal property).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a no contest plea to charges that merely restates the language of a statute that is not a categorical match cannot conclusively establish that a defendant admitted to conduct falling entirely within the generic federal definition of a crime."), citing United States v. Vidal, 504 F.3d 1072, 1088 (9th Cir. 2007) (en banc); United States v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir. 2005).

RECORD OF CONVICTION - CHARGING DOCUMENT
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) (where California Penal Code 459 does not require proof beyond a reasonable doubt that the burglary arose from an "unlawful" entry into a building, the "unlawful" language in the charging document is not an element of the offense, but rather a fact that the defendant has admitted to in taking the plea; because this fact was specifically admitted by the defendant at plea, it may be used as part of the record of conviction under the modified categorical analysis to determine that the defendant admitted committing a "generic" burglary offense by making an "unlawful" entry).

RECORD OF CONVICTION - CHARGING DOCUMENTS - "AS CHARGED"
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) ("In another recent en banc decision of our court, the defendant Vidal did not plead guilty "as charged." United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007). As a result, our en banc court had "no way of knowing what conduct Vidal admitted when he pled guilty to conduct that was not identical to that charged in Count One of the Complaint." Id. at 1088. Here, by contrast, the Certificate and Order of Magistrate establishes that Aguila-Montes was read the complaint and pleaded guilty to the offense charged in that document. We place no significance on the absence of the word "as" in the relevant language of the Certificate and Order of Magistrate. The Certificate states that the defendant pleaded guilty to the "following offense(s) charged in said complaint." Even though that Certificate does not use what the Vidal en banc court referred to as "the critical phrase as charged in the Information, " id. at 1087 (emphasis added), the Certificate specifically states that the charge in the complaint was read to Aguila-Montes and he pleaded guilty to it. That is sufficient.")

CATEGORICAL ANALYSIS - DIVISIBLE STATUTE - RECORD OF CONVICTION - GOVERNMENT MUST ESTABLISH THAT THE DEFENDANT PLEADED GUILTY "AS CHARGED" BEFORE THE CHARGE ESTABLISHES DEPORTABILITY
United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) ("In order to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain the critical phrase as charged in the Information." (internal quotation omitted)).