Chung Ping Li v. John Ashcroft, Attorney General

count, way degree on the first murder this Chung Ping LI, Petitioner,

argument to an reduces assertion that the Supreme verdicts were inconsistent. The held, however, that Court has inconsistent ASHCROFT, Attorney John jury verdicts nonetheless create a double General, Respondent. jeopardy subsequent bar retrial. “It is No. 02-72597. equally jury, possible convinced of guilt, properly reached its conclusion on United States Court of Appeals, offense, compound through then Ninth Circuit. mistake, compromise, lenity, arrived at Argued April Submitted an inconsistent conclusion on the lesser Filed Nov. But in offense. such situations the Gov- ernment has no recourse if it wishes to error; jury’s

correct the the Government precluded from appealing or otherwise

upsetting such an acquittal the Consti-

tution’s Jeopardy Double Clause.” United Powell, 57, 65,

States v. 469 U.S. (1984) (citations

471, 83 L.Ed.2d 461 omit-

ted).

IV.

Conclusion petition

We hold that Stew’s habeas

properly considered under 28 U.S.C.

§ 2241, 2254. Because im- Stew’s

pending retrial charges on the of attempt-

ed degree second murder would violate jeopardy,

double the district judg- court’s

ment granting petition Stew’s habeas

AFFIRMED.

Zachary Megan Fersten- Nightingale, feld-Torres, Hout, Brigagliano Der Van Francisco, CA, LLP, Nightingale, San petitioner. Paisner, Department Jennifer Justice, Immigration Litigation, Office D.C., Division, Washington, for the Civil respondent. KOZINSKI, WALLACE,

Before: GRABER, Judges. Circuit GRABER, Judge: Circuit must whether an alien defen- decide of an of- for conviction dant is removable deceit that “involves fraud or fense the victim or victims in prison. the loss to months After his release he which exceeds with a Appear placed served Notice to 1101(a)(43)(M)(i), though monetary even proceedings in removal Immigra- not an element of the crimes of loss is (INS).5 tion Naturalization Service Applying he was which convicted. The argued immigration INS categorical approach,” hold “modified (IJ) judge that Petitioner is removable as amount of loss “aggra- an alien who was convicted of an charg- unequivocally demonstrated felony.” vated See U.S.C. judgment convic- ing and the 1227(a)(2)(A)(iii). § specified The INS Therefore, grant peti- tion. we must types “aggravated three “a felonfies]”: review. tion for ... theft offense for which the term of year,” imprisonment[is] least one id. FACTUAL AND PROCEDURAL 1101(a)(43)(G); § an offense that “involves BACKGROUND in fraud or deceit which the loss to the Ping Li Chung is a citizen of Petitioner victim or victims exceeds who was admitted to the United Taiwan 1101(a)(43)(M)(i); § and “an attempt or legal permanent resi- States as conspiracy to commit” one of those two convicted, In after a dent. he was offenses, U01(a)(43)(U). §id. trial, federal eight fraud-related 287,2 2,1 371,3 The IJ with agreed §§ the INS with offenses under 18 re- (M) (U) conviction, Following spect to and 1001.4 his Peti- subsections and and did twenty-four argument tioner was sentenced not rule on the under subsection (a) against an 1. Whoever commits offense Id. 371. aids, abets, counsels, United States or com- mands, commission, Except procures provided 4. as induces or otherwise this sec- tion, whoever, punishable principal. any as a juris- matter within the executive, (b) willfully legislative, judicial act to be diction of or Whoever causes an directly performed by him or done which if branch of the Government United against States, an another would be offense knowingly willfully— States, punishable principal. United as a (1) falsifies, conceals, up by any or covers §Id. 2. trick, scheme, fact; or device a material presents person any 2. Whoever makes or (2) false, fictitious, any materially makes or civil, military, or officer in the or naval ser- representation; fraudulent statement or or States, any depart- vice of the or to United (3) any writing makes or uses false or docu- thereof, agency any upon or ment claim or knowing any ment the same to contain ma- States, against any department or United false, fictitious, terially or fraudulent state- thereof, agency knowing or such claim to be entry; ment or false, fictitious, fraudulent, impris- or shall be imprisoned shall be fined under this title or years oned not more five and shall be years, more than or both. subject provided to a fine in the amount 1001(a). §Id. this title. § 287. Id. 1, 2003, 5. The INS ceased exist on March conspire persons If two or more either when its functions were transferred to the States, any against commit Department the United Security. of Homeland See any agency or to defraud the or Security Homeland Act of Pub.L. No. any any purpose, thereof in or for 107-296, manner However, 116 Stat. 2135. we refer persons one more of such do act agency the INS here because the object conspiracy, to effect the each proceedings place case in this took before the imprisoned shall be fined this title or under transfer. years, not more than five or both. Cir.2000). Here, (6). be to the victim F.3d $10,000, we must determine whether Peti the IJ relied on the su- cause exceeded felony, committed information tioner perseding jurisdictional inquiry requires information an examina superseding The conviction. INS, 214 his associates with Ye v. charged Petitioner and tion of merits. (9th Cir.2000). they 1128, 1131 falsifying data manipulating fed- under contract with various generated par submitting invoices We review de novo whether agencies and with

eral aggravated felony. for the im- is an they sought payment in which ticular conviction 3, 6, data; Luu-Le, counts and 8 obtained properly information each de- superseding

of totaling seeking payment invoices scribed DISCUSSION $10,000. of con- The more than viction, turn, “was in states Petitioner To whether Petitioner determine eight of the guilty of Counts found felony aggravated of an one— was convicted Relying on Superseding [Information].” under 8 U.S.C. therefore removable documents, Petition- the IJ ordered these 1227(a)(2)(A)(iii), analysis employ § we removal. er’s 495 set forth v. United 575, 2143, 109 L.Ed.2d 607 U.S. appealed to the Board timely Petitioner (1990). 613, Tokatly Ashcroft, v. 371 F.3d (BIA).6 BIA The Immigration Appeals of Cir.2004). The essence 621-22 & n. 8 Pe- affirmed the IJ’s decision and ordered that the sentenc of the The BIA reasoned that titioner’s removal. beyond the may court not look record ing Petitioner of underly prior conviction to the facts through superseding 1 8 of the counts 6, 3, Tokatly, it. 371 F.3d at 620. ing and 8 information and that counts amounts of falsely referred to claimed categorical first make a com Therefore, We $10,000. the BIA

more than -here, parison between concluded, con- Petitioner must have been crime— as an of “aggravated felony,” defined in a resulting of an offense victed deceit $10,000 that “involves fraud or to the victim. This fense more than victim or victims which the loss timely petition for review followed. 8 exceeds U.S.C. AND JURISDICTION STANDARD 1101(a)(43)(M)(i) § elements —and OF REVIEW which Petitioner particular offense of each INS, v. 307 F.3d jurisdiction Chang was convicted. lack review (9th Cir.2002). 1185, statutory If 1189 against an alien final of removal who order broader than the felony. 8 crime conviction is has committed an (that 1252(a)(2)(C). is, if Petitioner could § Nonetheless under the statute for jurisdiction we have been convicted retain to decide whether INS, jurisdiction. 224 conduct that would have Luu-Le v. BIA, any argu to have abandoned cross-appeal INS is deemed The to the INS appeal question to the not raised BIA.” concluded that ments the BIA INS, v. of Petitioner had committed theft whether Alvarez-Santos Medrano, (9th Cir.2003) (citing 20 & In re I. imprisonment fense for which the term 218-20, (B.I.A. 1101(a)(43)(G), WL 385765 § year, 8 U.S.C. N. Dec. at least Therefore, 1991)). potential application of appeal.” INS not seek our "not on The does Indeed, (G) us. is not before "the subsection review of the BIA’s conclusion.

crime) same, must conspiracy then we move “modified to commit 1101(a)(43)(U). categorical approach”: categorical ap- Under Categorical A. Approach. The a limited

proach, we conduct examina- of documents in the tion record of parties agree The that Petitioner’s con- viction to determine if there is sufficient not satisfy categorical victions do the strict that a evidence conclude approach, in which may “look elements of the was convicted the fact of statutory conviction and the generically though defined crime even prior Taylor, definition of the offense.” fa- his her statute conviction was S.Ct. 2143. The relevant cially overinelusive. aggravated felony definition of an “has two Id. “The idea of the modified (1) elements: the offense must involve if approach is to determine the record (2) deceit, fraud or the offense must unequivocally establishes the defen also have resulted a loss to the victim or generically dant was convicted of the de $10,000.”8 victims of more than Chang, fined crime.... United States Corona- contrast, By 307 F.3d at 1189. the stat- Sanchez, (9th 1201, 291 F.3d 1211 Cir utes which under Petitioner was convicted (en .2002) banc). satisfy To the modified not require proof monetary do of a loss. a categorical approach jury case of See, Caldwell, e.g., v. United States 989 conviction, the record of conviction must (9th 1056, Cir.1993) (“To F.2d 1059 convict “ actually ‘jury that the was establish re § under gov- someone 18 371 the U.S.C. all quired to find the elements’ of the (1) only ernment need show he entered generic Id. (quoting Taylor, crime.” 495 (2) into an agreement to a obstruct lawful 2143).7 602, 110 atU.S. S.Ct. (3) government function the deceitful (4) under Petitioner is removable 8 U.S.C. or dishonest means and at least one 1227(a)(2)(A)(iii) § ag- of an conviction overt act in conspira- furtherance of the if, gravated felony two-step cy.”); under cate- the United v. Causey, States 835 F.2d (9th gorical 1289, Cir.1987) (“[T]he approach, we find that he was 1292 elements of an victed that “involves fraud or § of the offense created 18 U.S.C. 287 (1) deceit which the the victim or presenting loss to claim against the (2) victims exceeds id. United knowing such claim 1101(a)(43)(M)(i), § false.”)9; an attempt or of or be to v. United States Medina Many 7. published cluding more our decisions in- that submission of a false insurance application categori- volve the qualified of modified aggravated felony the claim as an under prior 1101(a)(43)(U), by guilty § cal though petitioner’s to convictions even the plea by jury trial or In the bench trial. scheme was unsuccessful and he received no plea, guilty payment case of a the record must "un- company). from the insurance equivocally establish[]” that § 9.A "claim” under 18 U.S.C. 287 must in pleaded guilty gener- all the to elements of the money volve "a demand for or transfer of Corona-Sanchez, ic offense. See 291 F.3d at public property attempt or an to cause the 1211. government pay money,” to out sums of Unit Jackson, 880, satisfy 8. (9th Potential or intended can ed loss States v. 845 F.2d 883 Cir.1988) (internal second element quotation omitted), under 8 U.S.C. marks 1101(a)(43)(U), § aggravat which defines an but requirement there is "no that the claim felony attempt honored,” ed conspiracy as "an or actually has been United States v. 1293, felony (D.C.Cir. commit” another defined in 727 Coachman, F.2d 1302 1101(a)(43). Thus, § 1984). Onyido, See In re 22 & N. although I. actual loss not re (B.I.A.1999) (con quired, Dec. WL 1999 126436 always a conviction under in Cir.1986) (9th above, that requirement as a described Perez, De sentencing verify that actu (18 only those court § 1001 “not prohibits might pecuni- findings necessary cause made ally false statements government, crime. See or the elements of ary property However, deceptive prac- statements 1327. but also agencies government prevent[] recognized paper tices that regu- form, carrying out administrative like instruc jury’s from verdict directives”). Therefore, we must latory tions, unequivocally could demonstrate approach. move requisite that the had found ele ments, previously as we had held Approach. Categorical B. The Modified Alvarez, 972 Cir. F.2d 1000 States 1992) curiam). Parker, categorical approach per- (per The modified 5 F.3d at Alvarez, mere go beyond fact mits courts In we held that the modi range of cases “in a narrow categorical approach conviction was fied satisfied actually where an information of the offense. elements” jury’s elements Taylor, 495 U.S. stating form de verdict “ gave example one The Court ‘as in the Infor fendant satisfy the prior conviction would when a F.2d at 1005-06 mation.’ categorical approach: a case omitted). modified Parker, however, burglary “include[s] statute which a state’s jury’s “provide[d] form no in verdict entry as well as build- of an automobile the facts found regarding formation information ing,” “the indictment or but jury” and recited that the jury show that the jury and instructions” violating of guilty the the found entry “necessarily to find an of at 1327. We concluded: statute. we said in to convict.” Id. As building verifying a verdict form the Without Parker, 5 F.3d United States of all jury’s findings of the truthfulness (9th Cir.1993), recognized have that “[w]e charging allegations, the the requisite of main concern in the Court’s In indispensable. are their instructions jury actually that found ensuring the absence, can no that there be assurance the the facts to render argues government that the the facts ” Thus, if of felony.’ ‘violent the record actu- were [the crime] establish jury that the conviction demonstrates by jury. the ally found actually found that Peti- Petitioner’s case Id. cause, caused, or intended to a loss tioner The Record Conviction. $10,000, C. the of more government will be categorical approach con As that Petitioner was proof satisfied. aggravated felony, INS victed consisting of of conviction of offered record types we discussed judg information superseding might that un documents demonstrate information con superseding the ment. The jury that a had found all equivocally satisfy the def allegations that would allegations to true. tains requisite charging be felony under 8 of an refer inition interpreted the Court’s (U). 1101(a)(43)(M)(i) For instructions, example in the ence to particular amount of intended loss no government. Nev because intended loss to volves ertheless, required. is § 287 not a match is charges find, that Petitioner was not example, count convict and his associates submitted federal Petitioner. Amount not an is ele- payments invoices for government two to- underlying ment of the crimes convic- $250,000 nearly they to which knew taling tion, out, pointed have and we have they were not entitled under their con- instructions, the record no verdict “THE judgment tract. The recites: DE- form, comparable or other sug- guilty FENDANT: was found of Counts that gesting jury actually was called on one-eight of Superseding[Information]. decide, for example, that Petitioner’s Accordingly, adjudged the defendant false claims a particular were for amount. count(s).... guilty of such it Although tempting presume that that argues The INS those statements claims false for which the convict- judgment unequivocally in the establish ed Petitioner were those in the that the Petitioner superseding information —count 8 de- alleged in facts document and $134,199.42 one for scribed invoice this therefore case is controlled $113,133.53 for another not do know —we disagree. view, Alvarez. We In our for prosecutor sure introduced the asking INS us extend Alvarez invoices descrip- the indictment’s jury’s applying logic to a verdict tion of the invoices was accurate10 or that form, prepared but to a that is the entire amount of the invoices was later the court and that does fraudulent. tain the critical phrase “as By looking imposed at the sentence un- Information.” Guidelines, der the we can tell dispositive, particularly This distinction is sentencing judge preponder- when consider Parker’s statement that “[wjithout ance of the evidence that Petitioner verifying a verdict form jury’s his findings responsible of the truthfulness of all associates were losses requisite charging allegations, amounting $10,000. the in- to much more than indispensable.” structions F.3d at That does not categori- 1327. Our later cases have cited our con- however, cal approach, does not in Parker the verdict clusion form satisfy requirement that the defendant confirm the factual findings must have been of convicted each element of the are when instructions absent. generic crime. Chang, See 307 F.3d at See, Fish, e.g., United States v. express opinion 1189. We no as to wheth- (9th Cir.2004); 1200, 1203 n. 2 er a sentencing fact found beyond a rea- Franklin, 1165, v. 235 States 1170 n. sonable doubt a jury either or a judge (9th Cir.2000). 5 would qualify as a “conviction” of fact. express We likewise no especially rely opinion reluctant to as to solely on a charging whether judg- spe- and the defendant’s admission of a ment to a fact govern- sentencing establish that the cific fact would suffice. Nei- ment was not required prove, and the ther condition is present here. permitted Parker, The variance between the indict- we stated that we would contradict is, proof presented ment at trial Taylor's emphasis uniformity we on if were to course, limited the defendant’s Fifth legal substitute determinations about the ex- right grand Amendment to be indicted a variance, permitted tent of under diverse state States, jury. See Stirone United 361 U.S. doctrines, categorical and federal for the 212, 217-18, 270, S.Ct. 4 L.Ed.2d 252 analysis. 5 F.3d at 1327 4.n. (1960). However, believe, we continue to as “broader,” kind of reasons, To illustrate the first hold that For these generic requires crime suppose and the superseding information gun, have used a while the unequiv this not demonstrate record do can committed with crime conviction be amount ocally jury found the that the weapon. government may kind of The fraud to be arising Petitioner’s from use and other docu- then the indictment Therefore, $10,000. we can than greater that, prove ments record not conclude that defendant, it must convicted is satisfied. so that he used a have done PETITION GRANTED. instance, if that gun way was the —for charged in that element of the offense was KOZINSKI, Judge, concurring: Circuit (example a the indictment. state Cf. burglary including “entry of an statute categorical approach Any modified building”). well a automobile as Taylor v. United analysis must start with case, 575, 599-602, In our the crime of conviction is S.Ct. (1990). simply kind It the second of “broader.” L.Ed.2d 607 Where an of the crime—as generic lacks element the de- statutes under which substantive generic requires crime use when the (here, 18 U.S.C. fendant was convicted doesn’t 1001) the crime conviction gun while than the §§ 371 and are broader weapon at all. circum- require a such (here, “aggravated an felo- generic statute stances, of conviction can never the crime 1101(a)(43)(M)(i)), ny” 8 U.S.C. under generic to conform to the be narrowed of convic- may beyond the mere fact “go simple for the reason crime of cases where range tion in narrow mandates —to actually required to all the jury was —as find generic of the crime. find the elements generic crime. 495 U.S. elements of’ the against true that some of the counts It’s added). (emphasis 110 S.Ct. 2143 greater losses petitioner is to specific To be convicted of offense $10,000, the crimes with which but since generic “if ei- convicted of the be not make the petitioner substantially statutory ther definition crime, amount of loss element offense], or the corresponds [the on pass no the issue. need paper instructions actu- all the jury to ele- ally required the categorical approach thus The modified in order [the offense] ments of petitioner’s to conform can’t be used convict the defendant.” Id. Un- statute. of conviction added). the BIA improp- approach, der he convicted of an erly determined was only when the But this works felony. crime conviction between the difference I simple rule would use 2. This is the in fact crime lies the that generic and the if I had me the case all before to resolve in the former particular elements only we Taylor., But are bound were in lat- counterparts than the broader their also Supreme precedent Court but contrast, the crime By ter. when own. our missing it an viction is broader Alvarez, altogether, generic In United States element the (9th Cir.1992) curiam), (per decided jury actually can never find that “a was Taylor, we held that years of’ the two after required to find the elements about § 459 Cal.Penal Code a conviction under crime. There, burglary qualified quired as a conviction to find. the confusion didn’t burglary, though generic any because, as defined do harm even to the defendant Taylor, Court in Supreme the unlike form the verdict did not 598-99, requires unlaw allegations reference the charging but the California statute entry ful does merely jury the “reeite[d] [found] because the information not. We so guilty Parker of violating CaLPenal Code charged unlawfully “did en Alvarez § 459.” Id. This was insufficient to to building theft," a intent commit ter with held, categorical approach, the modified “Guilty jury and the found Alvarez verifying “[w]ithout verdict form the Burglary, violation of Penal crime of jury’s findings truthfulness of all of the charged as in the Code section Infor charging allegations, the in- mation.” indispensable.” structions are Id. The Al- heresy way varezian also makes its into Alvarez, which came down before we (“Thus, opinion. our Maj. op. See at 897 if implications Taylor, full understood the the record of conviction demonstrates Supreme with Court’s was inconsistent jury in actually Petitioner’s case opinion. I am not convinced that finding caused, that Petitioner to “as the Infor- intended someone cause, every government to finding mation” is the same as fact of more regardless $10,000, charge, of its categorical ap- statutory relationship to a element proach will be satisfied.” add- if ed)). crime. But even the had found that This approach only contrary is not building unlawfully, Alvarez entered a Taylor but also unfair to defendants being fact isn’t same re- because it denies them notice and a rea- Taylor calls for quired to find it—and opportunity charges sonable to rebut explicitly recognized latter. Alvarez against them. Since amount of loss Supreme Court’s focus on what the charges an against wasn’t element of the (“The find, required see Su- Li, he had no reason to would be believe ... preme held that [an] Court conviction, to his relevant no thus if appropriate charg- enhancement was on government’s reason cast doubt ing required paper instructions evidence as to amount of loss. For all we the elements of know, might Li overwhelming have had added)), in- burglary.” (emphasis but then evidence that loss suffered (“[Tjhese it, explicably forgot see id. two government $10,000, pre- was less than but particular items are not the ones that senting it have would been a can be that burglary used to show was waste of time and probably excluded as added)). proven." (emphasis irrelevant, since amount of loss was not element of the offense for which he was perpetuated Other cases have the Alva- tried. being “especially We are rez reluctant error. States v. rely solely on Cir.1993), F.3d 1322 where the same and the issue, judgment to establish fact that California was at statute we wrote government was not prove, main concern in “the Court’s find, jury actually required was not ensuring Maj. convict Petitioner.” at op. all the facts to render the offense 898. We should be felony,’ equally rely a ‘violent id. at 1327 reluctant to on added) (citing 1005- to establish element that the 06), again confusing finding being with re- was not and that dis- rebut or no chance to prove. turn, it wrong took

Though Alvarez reaching the from prevent us

does here, in Par- just as didn’t

right result here show have no instructions

ker. We required to find jury was loss, Parker agree I

amount on the relying us from

prevents judg- place, first In the

of conviction: court, prepared

ment was and, place, it states jury; the second guilty of certain Li was found

only that necessarily mean

counts, which doesn’t in those counts the facts

that all .recited Maj. op. be true. See found to

were

897-98. caused, and will continue has

Alvarez makes

cause, Though its error mischief. case, it in this to the outcome

no difference by an bane court. to be en

needs overruled

But, Judge opinion prop- Graber’s wrong law the

erly applies circuit — result, right it be—and reaches the

though join.

I America, STATES

UNITED

Plaintiff-Appellee, VARGAS-AMAYA,

Dante

Defendant-Appellant.

No. 03-50577. Appeals,

United States Court

Ninth Circuit. Submitted June

Argued and

Filed Nov.

Case Details

Case Name: Chung Ping Li v. John Ashcroft, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 19, 2004

Citation: 389 F.3d 892

Docket Number: 02-72597

Court Abbreviation: 9th Cir.