Luis Alexander DUENAS-ALVAREZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 04-74471.
United States Court of Appeals, Ninth Circuit.
Argued March 7, 2011. Resubmitted Aug. 13, 2013. Filed Aug. 20, 2013.
733 F.3d 812
Second, the circumstances of this case indicate that the civil RICO suit was not “analogous” to a criminal prosecution. Rather, Defendants filed the RICO suit as part of their long-running “political war” against members of the Board of Supervisors, judges, and others. The suit was essentially a harassing public-relations ploy. Defendants filed baseless criminal suits against Stapley and others both before and after filing the RICO suit, seeking media publicity for their actions in connection with these suits. Before initiating the civil RICO suit, Defendants received warnings from attorneys both inside and outside their office that the suit had no basis in fact or law and would likely result in sanctions. Defendants had also been warned of ethical conflicts related to filing the suit.
Defendants nonetheless filed the RICO suit, announcing it to the media immediately after filing. Then, before the court had any opportunity to assess its validity, Defendants voluntarily dismissed the suit. After dismissing the suit, Defendants held a press conference, announcing that the Department of Justice had agreed to investigate the RICO Lawsuit defendants. The DOJ had, in fact, made no such agreement, and it later announced that it was “dismayed to learn” of the press conference. Through these actions, Defendants deliberately “side-stepped the judicial process,” like the prosecutor in Lacey who avoided judicial scrutiny and thereby lost the protections of absolute immunity. Lacey, 693 F.3d at 914.
We need not determine whether each of the distinguishing characteristics here, standing alone, would be sufficient to defeat absolute immunity. We hold only that, under the circumstances presented here, Defendants are not entitled to absolute immunity because their actions were not sufficiently “analogous to those of a prosecutor.” Butz, 438 U.S. at 515, 98 S.Ct. 2894.
Conclusion
We affirm the district court‘s denial of Defendants’ motions to dismiss based on their asserted absolute immunity from claims arising out of their civil RICO suit.
AFFIRMED.
Bryan S. Beier (argued), Carol Federighi, and Allen W. Hausman, Senior Litigation Counsel, Tony West and Peter D. Keisler, Assistant Attorneys General, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: STEPHEN REINHARDT, SUSAN P. GRABER,* and KIM McLANE WARDLAW, Circuit Judges.
GRABER, Circuit Judge:
Petitioner Luis Alexander Duenas-Alvarez is a native and citizen of Peru who entered the United States in 1990. He became a lawful permanent resident in 1998. In 2002, he was convicted of having violated
The question for decision is whether the government proved that Petitioner was convicted of a qualifying felony theft offense. Petitioner raises two arguments: (1) it is not clear that he was convicted as a principal, instead of as a mere accessory after the fact, under
Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant‘s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). As the Supreme Court recently clarified, we apply a variant of this method, the modified categorical approach, “when a prior conviction is for violating a so-called ‘divisible statute.‘” Id. A divisible statute is one that
sets out one or more elements of the offense in the alternative--for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits ... courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant‘s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.
As relevant here,
In United States v. Snellenberger, 548 F.3d 699 (9th Cir.2008) (en banc) (per curiam), we held that we may look to documents such as the minute order or abstract of judgment when applying the modified categorical approach. More recently, in Cabantac v. Holder, No. 09-71336, 736 F.3d 787, 793-94, 2013 WL 4046052, at *5 (9th Cir. Aug. 9, 2013) (per curiam), we held that “where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.” Finally, in United States v. Valdavinos-Torres, 704 F.3d 679, 686-89 (9th Cir.2012), we examined a charging paper in combination with other documents in the record, including the abstract of judgment, to determine whether the defendant had pleaded guilty to an aggravated felony. Applying those principles here, we reject Petitioner‘s first argument.
Count 1 of the information charged that on a certain date in 2002, Petitioner committed “the crime of taking a vehicle without the owner‘s consent, in violation of
Petitioner‘s second argument fares no better. The BIA has held that
Petition DENIED.
REINHARDT, Circuit Judge, concurring.
I concur because I am bound to do so by Cabantac v. Holder, No. 09-71336, 736 F.3d 787, 2013 WL 4046052 (9th Cir. Aug. 9, 2013) (per curiam), and United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012).
Concurrence by Judge REINHARDT.