(B)

Charging in the Conjunctive.  Commonly, even though a statute may be framed in the disjunctive (i.e., “false or fraudulent”),[1] the criminal charging documents often state the offense in the conjunctive (“false and fraudulent”).[2]  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).  Counsel should argue that 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.[3]

 

In Hirsch v. INS,[4] the Ninth Circuit held that a false statement conviction did not constitute a “crime involving moral turpitude,” since the statute violated[5] 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.[6]

 

            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.[7]

 

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.

 

            Two circuits have taken the position that the question of whether to read a conjunctive charge disjunctively or not depends upon state law.  The Fifth Circuit found that while Texas law allowed a conjunctive charge to be proven by any of the disjunctive elements,[31] the rule in Georgia is that a plea to a conjunctive charge is a plea to all the elements.[32]  Likewise, the Eighth Circuit found that a plea to “sell and offer to sell a controlled substance” was an aggravated felony, despite the inclusion of solicitation, because the court found that under California law, a plea to a conjunctive is a plea to each of the listed sets of elements.[33]

            When the charge is made in the disjunctive, the party with the burden of proof loses the divisible statute analysis[11] 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). This violates the rule that the nature of the conviction is determined under federal immigration analysis, rather than state law.

[34] 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.”).

[35] 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).

[36] 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).

[37] Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962).  See also Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 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.”).  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.

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

[39] Ibid.

[40] 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).

[41] United States v. Morales-Martinez, 496 F.3d 356 (5th Cir. Aug. 8, 2007) (plea to count 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; 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)").  See also 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”).

[31] United States v. Gutierrez-Bautista, 507 F.3d 305 (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).

[32] United States v. Garcia-Medina, 497 F.3d 875 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code § 11352(a), properly triggered 16-level sentence enhancement for illegal re-entry after deportation since charge to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction), citing People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981); People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996); People v. Guerrero, 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).  Note: this decision would appear contrary to the Ninth Circuit rule.  See Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 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).

[33] 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).

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

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " PLEA TO COUNT CHARGED IN THE CONJUNCTIVE ESTABLISHES ONLY ONE OF THE ALTERNATIVE THEORIES
Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc) (Under the modified categorical approach, a guilty plea to a conjunctive count does not necessarily admit every possible version of the crime. . . . [U]nder the modified categorical approach, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes conviction under at least one of those theories, but not necessarily all of them. . . . In sum, when either A or B could support a conviction, a defendant who pleads guilty to a charging document alleging A and B admits only A or B. Thus, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.).

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 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.