Crimes of Moral Turpitude

(A)

Charging Papers.  The “record of conviction” includes the charge, which may be contained in a complaint,[1] information, or indictment.[2]  Only the charge of which the defendant is convicted is included in the record of conviction. 

In the Ninth Circuit, the charging papers are never sufficient, in and of themselves, to establish the elements to which a noncitizen entered a plea of guilty.  Instead, the charging paper must be coupled with some other evidence from the record of conviction establishing that a plea or verdict was entered to the particular charge.[3]  The same has been held of a charging document coupled with a minute order.[4]  In many states, a court may accept a plea to a lesser included or reasonably related but different offense, rather than to the charged offense, at any time, and without any written amendments to the information or complaint.[5]

The Fifth Circuit has found that for purposes of divisible statute analysis, a charging document “unambiguously identifying the one particular subdivision charged suffices to carry that burden, absent anything in the record affirmatively casting doubt on, or creating an ambiguity respecting, that conclusion, at least where no claim is made before the district court that the prior conviction was in actuality under a different subdivision than that reflected in the charging instrument or in actuality the conviction was based on some other, materially different charging document.”[6]  Thus, while the Ninth Circuit places the burden strictly on the government to show evidence of the exact plea, the Fifth Circuit allows the burden to shift to the noncitizen if the charging papers are clear.

As discussed in § § 7.4 and 7.9, supra, language in a charge that goes beyond the exact words of the statute can sometimes be considered in making a divisible statute[7] 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.[8] 

Archaic boilerplate that is not reflective of the elements of the statute will also not be considered as becoming part of the facts of the case.  See § 7.9(C), supra.

[136] In some cases a “complaint” arguably may not be acceptable, since in some states the complaint is created by the police department, not the district attorney’s office, and is not sufficient, in itself, to initiate criminal proceedings.  See Garcia v. U.S. Att’y Gen., 462 F.3d 287, (3d Cir. Sept. 5, 2006) (finding complaint filed under Pennsylvania law sufficient).

[137] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (indictment report is part of record of conviction, for purposes of determining whether conviction constitutes aggravated felony for removal purposes); Matter of Truong, 22 I. & N. Dec. 1090 (BIA 1999) (information is included in record of conviction); Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587, 588 (BIA 1992) (including an information in “record of conviction”); Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  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]).

[138] United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (“[I]f a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pleaded guilty to the elements of the generic crime. Charging papers alone are never sufficient.”).  See also Martinez-Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (a charging document alleging Count X, coupled only with an Abstract of Conviction identifying that a plea was made to Count X, is not proof that the defendant pleaded to all of the elements charged in Count X); United States v Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (written notation in the Abstract of Conviction cannot be relied upon to identify the offense of conviction within a divisible statute containing more than one offense, but the court did consider the Abstract’s notation of the Count of conviction combined with the charging document); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (“It cannot be disputed that Count One’s language sets out the generic elements of burglary . . . .  The Information alone, however, cannot support a finding that Velasco-Medina’s burglary conviction was an aggravated felony. By itself, the Information contained the elements of the crime the government set out to prove; it did not establish the elements to which Velasco-Medina actually admitted in his guilty plea.”); United States v. Belless, 338 F.3d 1063, 1068, 1069 (9th Cir. 2003) (“[T]he record indicates that Belless was charged with conduct that was a violent act and not merely a rude or insolent touching. But the record does not reveal the conduct to which he pleaded and for which he was convicted. Accordingly we cannot conclude that the trier of fact ... in this case necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense.”).

[139] United States v. Snellenberger, 480 F.3d 1187 (9th Cir. Apr. 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 re-entry after deportation); 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).

[140] United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) (“The prosecution need not have formally amended the two counts in order for Vidal to have pleaded guilty to conduct other than that alleged in the Complaint. See People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926 (Ct.App.2006) (explaining that under California's informal amendment doctrine no “talismanic significance [attaches] to the existence of a written information” and that “a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information)”).

[141] United States v. Torres-Diaz, 438 F.3d 529, 539, 535 (5th Cir. Jan. 30, 2006).  See also United States v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. Apr. 20, 2006) (where the complaint charges defendant under a subsection of a divisible statute that is a categorical crime of violence, but the plea colloquy does not indicate any specific subsection, it is not plain error for the illegal re-entry sentencing court to find that the defendant had pleaded guilty to the subsection charged in the complaint). It is, however, error.

[142] See § § 7.1-7.6, supra.

[143] 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”).  See discussion at 7.9(C), supra.