Crimes of Moral Turpitude

 

(B)

Factual Basis and Admissions.  Admissions by the defendant to the court at the time of pleading guilty may be regarded as part of the record of conviction.[1]  The United States Supreme Court equates the factual basis in a guilty plea to jury instructions in a conviction resulting from trial.[2]  Where both parties in the criminal case agree, additional documents may also be properly considered in determining the factual basis for the conviction.[3]  Criminal law generally requires that when entering a guilty plea, the parties stipulate to a factual basis for the plea.  In California, for example, a factual basis must be stipulated for a felony plea and the parties must specify a particular document that contains that factual basis.[4]  The establishment of a factual basis is therefore required to enter a felony plea.  However, the establishment of a factual basis may still not be determinative of the nature of the conviction for immigration purposes.[5]

In a somewhat disturbing decision, the Ninth Circuit held that the courts can essentially look to the facts as described in any document when conducting a divisible statute analysis, as long as the prosecution and the defendant’s attorney have stipulated to the facts contained in that document as a basis for a guilty plea.[6]  The court determined that the noncitizen had been convicted of an aggravated felony crime of violence based upon a conviction for false imprisonment that may be committed through “violence, menace, fraud, or deceit.”[7]  While the charge and the plea itself went no farther than the language of the statute, the document stipulated to contain the factual basis for the plea described the offense in detail, showing that the false imprisonment was committed through violent means. This examination of the factual basis was arguably reasonable, since it directly addressed only the determination of the set of elements (i.e., violence, menace, fraud or deceit) to which the plea was entered.

 

However, as the dissent pointed out:

 

A “factual basis” sometimes consists of a defendant’s admission of what he did, but sometimes does not, as when the prosecutor states what he thinks he could prove, and defense counsel stipulates that the prosecutor could put on persuasive evidence to this effect. Defense counsel may have been saying, in effect, “my client is not ready personally to say this is what he did, but he is prepared to plead guilty because the prosecutor will be able to put on evidence that this is what he did.”[8]

The dissent correctly concluded that “tersely stipulat[ing] that the witness statement furnished a sufficient factual basis for the plea [is] not the same thing at all as a colloquy between judge and defendant in which what the witness said was confirmed by the defendant.”[9] 

 

The Ninth Circuit has since withdrawn from this decision to some extent, suggesting that a stipulation that a police report reflects the factual basis for a plea may not be sufficient to allow the information contained in the police report to speak to the nature of the conviction for immigration purposes, since police reports “do not necessarily contain either the defendant’s own account of the events, or a mutually agreed-upon statement of facts.”[10]

Counsel should argue that any factual findings or admissions must have been made in order to convict.  In Morales v. Gonzales,[11] the Ninth Circuit found that an admission by the defendant in the context of a challenge to the sufficiency of the evidence to support a conviction could not be used by the immigration authorities in finding the noncitizen had committed a particularly serious crime.  In that case, the defendant did not actually admit the truth of any facts:

 

No factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true.  It was from this isolated context that the IJ drew the facts and circumstances of Morales’s conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).  Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State’s evidence for the purpose of her challenge to its sufficiency.

 

It was therefore improper for the immigration judge to rely on the facts presented to the criminal court for the limited purpose of proving the defendant’s case on appeal.

 

Entry of a no contest plea does not alter the immigration nature of the conviction, but it might make it easier for the court and prosecution to agree not to make a record of the factual basis for the plea that would expand the nature of the conviction sufficiently to trigger a ground of deportation.  Since a no contest plea may be entered without any factual admission of guilt,[144] the court and prosecution may allow entry of the plea without establishing any factual basis for the plea.  If the court still wishes to establish a factual basis, it might be more inclined to accept defense counsel's specific disclaimer, "We are not admitting the truth of the facts contained in the police report, but simply allowing the court to review it to determine whether the prosecution could present some evidence of every element of the offense."  This disclaimer should be sufficient to take the police report factual basis out of the record of conviction, since the defendant is expressly not admitting the truth of the facts contained therein.

[145] Wala v. Mukasey, 511 F.3d 102 (2d Cir. Dec. 12, 2007) (“a petitioner necessarily pleads to facts when, for example, he actually admits specific facts in his plea colloquy or comparable judicial record that establish he violated a divisible statute in manner that satisfies the criteria of the pertinent removability statute. Further, if the petitioner is charged with violating a divisible state statute in manner that satisfies the elements of the pertinent removability statute and he pleads guilty, he has “necessarily pleaded” to an offense for which he is removable.”); Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. July 16, 2004) (defendant’s factual admissions during plea hearing may be used to identify particular elements of divisible statute that form the offense of conviction); Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (admission by the defendant during plea hearing that weapon was a firearm); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (even though the rest of the record of conviction contained no reference identifying the particular drug involved, the defendant’s admission he possessed heroin, contained in the reporter’s transcript of the guilty plea hearing, was sufficient to establish that the drug possessed was proscribed by federal law), distinguishing Matter of Cassisi, 10 I. & N. Dec. 136 (BIA 1963).

[146] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1259 (Mar. 7, 2005) (“In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact; in pleaded cases, they would be the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.”).

[147] See, e.g., United States v. Martinez-Vega, 471 F.3d 559 (5th Cir. Nov. 29, 2006) (Texas conviction for sexual assault of a child under 17, in violation of Texas Penal Code § 22.011, is a “crime of violence” as “sexual abuse of a minor” for illegal re-entry sentencing purposes, especially where noncitizen defendant admitted before criminal judge that all facts in PSR were correct [i.e., that he sexually abused his 14 year old daughter]); Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (where both parties to a guilty plea agree that certification for determination of probable cause will be reviewed by the court in determining whether there is a factual basis for the plea and in sentencing, the document is included within the record of conviction for purpose of enabling the immigration court to consider the facts recited within it in determining the elements of the offense to which the defendant engtered a guilty plea, in assessing the immigration consequences); United States v. Kiang, 175 F.Supp.2d 942, 950-951 (E.D.Mich. 2001) (“The sentencing transcript indicates that both parties concurred in the court’s proffer that it adopt the preliminary examination transcript . . . by reference in order to establish a factual basis for the sentencing proceeding.”).

[148] People v. Holmes, 9 Cal.Rptr.3d 678, 32 Cal.4th 432 (2004) (felony convictions are invalid since the court, at the time of the pleas, failed to establish a sufficient factual basis in support of the pleas, since it did not make any factual inquiry of the defendant, and did not identify any particular document as the source of the factual basis for the pleas).

[149] See, e.g., United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. Aug. 1, 2006) (police reports stipulated as factual basis for plea do not unequivocally establish plea to deportable offense where plea is in disjunctive: “First, although Almazan-Becerra stipulated that the police reports formed a factual basis to support his plea, the plea was disjunctive. He therefore could have been stipulating that the police reports supported a plea to transporting or offering to sell marijuana. As such, the stipulation does not “unequivocally establish” a factual basis for selling marijuana.”).

[150] United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005).

[151] California Penal Code § 236.

[152] United States v. Hernandez-Hernandez, 431 F.3d 1212, 1224-1225 (9th Cir. Dec. 16, 2005) (Kleinfeld, J., dissenting).

[153] Id. at 1226 (Klienfeld, J., dissenting).

[154] United States v. Almazan-Becerra, 456 F.3d 949, 954-955 (9th Cir. Aug. 1, 2006) (police reports stipulated as factual basis for plea are not the functional equivalent of either a plea agreement or plea colloquy), distinguishing United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217-1219 (9th Cir. 2005).

[155] Morales v. Gonzales, 472 F.3d 689 (9th Cir Jan. 3, 2007).

[144] State v. Aquino, 89 Conn.App. 395, 873 A.2d 1075, 396 n.1 (Conn. App. June 7, 2005), rev'd, , 279 Conn. 293, 901 A.2d 1194 (Conn. Aug. 8, 2006) ("Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless." (Emphasis in original; internal quotation marks omitted.), citing State v. Faraday, 268 Conn. 174, 204-205, 842 A.2d 567 (2004).  But see Suazo Perez v. Mukasey, 512 F.3d 1222, n.4 (9th Cir. Jan. 22, 2008) ("That Suazo entered an Alford plea does not prevent us from evaluating the police report under the modified categorical approach."), citing United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006) (“Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in the context of the modified categorical approach under Taylor.”).