Criminal Defense of Immigrants

The “record of conviction” includes the plea (in cases in which a no contest or guilty plea was entered), or jury verdict (in cases in which the conviction resulted from a jury trial).[324]  As with guilty pleas, the underlying facts of the case do not generally form part of the record of conviction, and in determining whether a conviction by jury triggers removal, the evidence upon which the verdict was rendered cannot be considered.[325]  As with a guilty plea, a jury verdict establishes the truth of all of the essential elements of the crime of conviction.[326]  The minimum conduct rule applies:

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.[327]

The record of conviction also includes the jury instructions which inform the jury of the elements it must find before rendering a verdict.  See § 16.28(C), infra.

[324] Maghsoudi v. INS, 181 F.3d 8 (1st Cir. 1999) (court may consider record of conviction, including the charge (indictment), plea, verdict, and sentence, in determining the exact offense to which noncitizen entered a guilty plea, to determine whether it involved moral turpitude); Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996); Maroon v. INS, 364 F.2d 982 (8th Cir. 1966); Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Pino v. Nicolls, 215 F.2d 237, 240 (1st Cir. 1954); Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 325-326 (BIA 1996); Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (including indictment, plea, verdict, and sentence in “record of conviction”); Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979).  Cf. United States v. Allen, 282 F.3d 339, 342-343 (5th Cir. 2002) (courts may consider charging papers and jury instructions to determine whether a prior offense qualifies as a “serious drug offense” for purposes of 18 U.S.C.A § 924(e)(2)(A) [Armed Career Criminal Act]).

[325] United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933) (the court cannot go outside the record of conviction to determine whether in the particular instance the noncitizen’s conduct was immoral; the evidence upon which the verdict was rendered could not be considered; and the guilt of the defendant cannot be contradicted). 

[326] Cf. Matter of S, 9 I. & N. Dec. 688, 696 (BIA 1962).

[327] Matter of R, 6 I. & N. Dec. 444, 450-451 (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).