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Wednesday, January 17, 2007

SCT Update from Aaron Street

Greetings, sportsfans! The Court pitched its fourth CA9 shutout on the season in today’s lone opinion, an immigration-law decision that will principally be of interest to (1) law nerds and (2) immigration law nerds. I say principally because throngs of Minutemen briefly looked up from gun magazines to hail the decision as “a good bit of book larnin.”

Gonzales v. Duenas-Alvarez, 05-1629

Justice Breyer wrote for the essentially unanimous Court (JPS joined all but one subpart). The Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G), which has now surpassed the Internal Revenue Code and the Federal Acquisition Regulation for sheer reticulated complexity, provides for deportation of an alien who commits a “theft offense.” The issue is whether a California conviction for aiding and abetting a theft falls within this definition. The Court answers such questions by examining the state statute of conviction and determining whether it contains the same elements as the generic crime of theft, as it is defined by the criminal code of most states. See Taylor v. United States (1990). The 9th Circuit held that aiding and abetting falls outside the generic definition of theft. Utilizing the Court’s “CTRL-ALT-9” macro that has worn smooth countless keyboards, Justice Breyer wrote: “We conclude that the Ninth Circuit erred.” The Court explained that every single U.S. jurisdiction (including California) has abolished the common-law distinction between principals and aiders and abettors (except accessories after the fact, not at issue here). So aiding and abetting theft in California clearly falls within the modern, generic definition of a “theft offense.” The respondent did not even attempt to defend the CA9’s reasoning. Instead, seeking to avoid the California theft statute itself, he argued that California caselaw holds an aider and abettor liable for crimes that he did not specifically intend—i.e., crimes that are the “natural and probable consequence” of the intended crime—and thus extends beyond the generic definition of theft. SGB comprehensively surveyed the caselaw and concluded that California’s version of aiding and abetting liability is no different than other jurisdictions. The Court declined to reach two additional arguments that respondent failed to raise below.

JPS joined all but the section discussing California caselaw. In a triumph of hope over experience, he would simply have vacated the 9th Circuit’s ruling and remanded to give the CA9 the first crack at interpreting California law. To quote noted philosopher-poet George Michael, “you gotta have faith-uh, faith-uh, faith.”

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author.

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Posted by Administrators on January 17, 2007 at 01:47 PM in Constitutional thoughts | Permalink

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