Milton Bladimir Rosales RIVERA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 12-72668.
United States Court of Appeals, Ninth Circuit.
Filed Feb. 23, 2016.
Argued July 9, 2015. Submitted March 10, 2016.
816 F.3d 1064
...
Shockley also argues that, in light of Johnson, we should remand with instructions that the district court not assess a sentencing enhancement under
III.
For the foregoing reasons, we affirm Shockley‘s conviction, but we vacate his sentence and remand for resentencing.
Jessica Dawgert (argued), Kristofer McDonald, Trial Attorney, and Leslie McKay, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; Joyce Branda, Acting Assistant Attorney General, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
OPINION
PAEZ, Circuit Judge:
At common law, a person could be convicted of perjury “when, under oath, he wilfully and corruptly [gave] false testimony on a material point in a judicial proceeding.” 4 Wharton‘s Crim. Law § 574, Westlaw (database updated Sept. 2015); see also In re H, 1 I. & N. Dec. 669, 670 (BIA 1943). Today, many states have adopted expanded definitions of perjury
Within this complex framework, Milton Bladimir Rosales Rivera, a citizen of El Salvador, pled no contest to a charge under section 118.1 Later, in removal proceedings, the Immigration Judge (“IJ“) and the Board of Immigration Appeals (“BIA“) ruled that this conviction was a crime involving moral turpitude (“CIMT“) and therefore disqualified Rosales Rivera from obtaining cancellation of removal. The first issue in this proceeding is whether sectiоn 118 is categorically a CIMT. Because we determine that it is not, we proceed to consider whether section 118 is divisible. We find that section 118 criminalizes two distinct offenses: written and oral perjury. Finally, applying the modified categorical approach, we hold that Rosales Rivera‘s offense of conviction—written perjury—is not a CIMT. We therefore grant the petition for review and remand for further proceedings.
We note that whether section 118 is a CIMT is a different question from whether perjury, generally, is a CIMT. We recognize that historically common law perjury was considered to be a CIMT, but, as we will explain, both section 118 as a whole and the specific offense of written perjury criminalize significantly more conduct than common law perjury. Moreover, in focusing on section 118 alone, we leave the rest of California‘s perjury framework untouched. California‘s special perjury statutes, for instance, have distinct elements and therefore require an entirely separate CIMT analysis from the one we undertake here.
I.
Rosales Rivera is a citizen of El Salvador who first came to the United States in 2001. He has a son who is a United States citizen. He admits he is present in the United States without having been admitted, paroled, or inspected by an Immigration Officer, the basis for removal that the Department of Homeland Security (“DHS“) cited in its Notice to Appear. See
On December 14, 2011, in the County of San Bernardino Superior Court, Rosales Rivera was charged with “PERJURY—APPLICATION FOR DRIVER‘S LICENSE” in violation of
DHS initiated removal proceedings against Rosales Rivera. The IJ ordered Rosales Rivera removed. In doing so, she concluded that a conviction under section 118 “is clearly a crime involving moral turpitude,” and therefore Rosales Rivera was ineligible for cancellation of removal
Rosales Rivera timely filed a petition for review.
II.
In Marmolejo-Campos, we established a two-step framework for evaluating whether a conviction is categorically a CIMT. 558 F.3d at 907-12. In the first step, we must identify the elements of the petitioner‘s statute of conviction, reviewing de novo the BIA‘s analysis. Id. at 907, 911.
The second step requires determining whether the “petitioner‘s offense” is a CIMT. Id. We employ the categorical approach, as described below, to assess whether a statute of conviction is a CIMT. Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008). To make this determination, we “compare the elements of the statute of conviction to the generic definition of a [CIMT to] decide whether the conviction meets that definition.” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013). We rely on our “own generalized definition of moral turpitude,” which divides almost all CIMTs “into two basic types: those involving fraud and ‘those involving grave acts of baseness or depravity.‘” Marmolejo-Campos, 558 F.3d at 910 (quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005)).
III.
In determining whether the statute of conviction fits categorically within our general definition of moral turpitude, some deference to the BIA may be warranted. Ordinarily, where “the [BIA] determines that certain conduct is morally turpitudinous in a precedential decision, we apply Chevron2 deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it.” Id. at 911. Otherwise, Skidmore3 deference applies. Id. at 909. Here, as noted above, the BIA cited to a published decision, Martinez-Recinos, in which the BIA stated without analysis that “the respondent‘s aggravated felony offense” under
In Chevron, the Supreme Court contemplated an agency engaging in the process of “informed rulemaking” by “consid-er[ing] varying interpretations and the
We have limited Chevron deference to precedential BIA decisions based on similar reasoning. The BIA issues precedential decisions where it “intend[s] to issue an interpretation of a statute it enforces.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 922 (9th Cir.2006); see also
This case presents such a “rare instance.” In Martinez-Recinos, the BIA‘s analysis focused on why section 118 is an aggravated felony, without any explanation of why section 118 is a CIMT. 23 I. & N. Dec. at 176-78. The only sentence concerning section 118‘s status as a CIMT is: “We concur with the [IJ] that the respondent‘s [conviction under section 118] is also a crime involving moral turpitude, which renders him inadmissible....” Id. at 178. The decision contains no discussion of the elements required for a conviction under section 118, nor any explanation of why section 118 constitutes a CIMT under the BIA‘s definition or our definition of moral turpitude. See id. Because the BIA did not support its conclusion with any statutory interpretation or reasoning, we accord no deference to Martinez-Recinos under Chevron.
Where Chevron deference does not apply in the CIMT context, Skidmore deference does. Marmolejo-Campos, 558 F.3d at 909. Under Skidmore, “the measure of deference afforded to the agency varies ‘depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking the power to control,‘” Id. (quoting Skidmore, 323 U.S. at 140). Here, the BIA‘s decision that section 118 is a CIMT is not entitled to Skidmore deference because, as we explained, the BIA in Martinez-Recinos provided no reasoning whatsoever. See, e.g., Castrijon-Garcia, 704 F.3d at 1211 (“declin[ing] to grant deference” under Skidmore where there is “no analysis at all“).
IV.
A.
As explained above, under the categorical approach, we must first interpret the statute of conviction to identify its essential elements. Marmolejo-Campos, 558 F.3d at 907.
(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be admin-
istered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which thе testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.
As discussed below, infra Part V, section 118 criminalizes both written and oral perjury. In the case of a defendant who committed oral perjury, we have articulated the elements of this offense as “a willful statement, under oath, of any material matter which the witness knows to be false.” Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.2004) (quoting Cabe v. Super. Ct., 63 Cal.App.4th 732, 734 (1998)). The model jury instructions for section 118 explain that written perjury, by contrast, requires only that the false statement be in writing under penalty of perjury. See People v. Hedgecock, 51 Cal.3d 395, 403-04 (1990) (explaining that California Jury Instruction—Criminal (“CALJIC“) No. 7.21 (1982) sets forth the elements of written perjury). The requirements of willfulness and materiality are common to both perjury offenses.
The word “willful” “simply means that the witness made the allegedly perjurious statement with the consciousness that it was false; with the consciousness that he did not know that it was true and with the intent that it should be received as a statement of what was true in fact.” People v. Tolmachoff, 58 Cal.App.2d 815, 821 (1943); see also People v. Hagen, 19 Cal.4th 652, 663-64 (1998); People v. Viniegra, 130 Cal.App.3d 577, 584 (1982). That the accused was not competent4 to give a false statement is not a defense to a charge of perjury under section 118.
A statement is “material” if “the statement or testimony ‘might have been used to affect the [proceeding in or for which it was made],‘” or if “the statement could probably have influenced the outcome of the proceedings.”5 People v. Feinberg, 51 Cal.App.4th 1566, 1575 (1997) (quoting People v. Kobrin, 11 Cal.4th 416, 420 (1995) and People v. Pierce, 66 Cal.2d 53, 61 (1967)). For example, testimony may be material if it has a tendency to impeaсh the credibility of a witness who testified on a material issue, even if the testimony is unrelated to the case itself. See People v. Gamble, 8 Cal.App.3d 142, 146 (1970). It is not a defense to perjury that “the accused did not know the materiality of the false statement made.... It is sufficient that it was material.”
People v. Darcy illustrates the breadth of the materiality element. 59 Cal.App.2d 342 (1943), disapproved of on other grounds by Murgia v. Mun. Ct., 15 Cal.3d 286 (1975). There, the defendant stated under oath before a deputy registrar of voters that his name was Sam Darcy and that he was born in New York, even though his true name was Samuel Dardeck and he was born in the Ukraine. Id. at 345. Darcy argued that it was immaterial whether he made false statements about his name and place of birth, as he could have registered to vote had he used his real name and given his correct place of birth. Id. at 348-49. The court, however, reasoned that the false statements were material because the voting authorities were “prevented from examining the father‘s naturalization papers for the purpose of verifying [Darcy‘s] citizenship.” Id. at 349. Indeed, one‘s name and birthplace may serve “as a basis for an investigation of qualifications of a person who registers,” including citizenship. Id. In sum, even though Darcy would have been allowed to vote had he given his true name and true birthplace, his false statements under oath were material.
B.
Having identified the elements of the statute of conviction in the first step, we move to the second step, where we use the categorical approach to determine whether section 118 is a CIMT. Almаnza-Arenas v. Lynch, 809 F.3d 515, 521-22 (9th Cir.2015) (en banc), opinion amended and superseded, (9th Cir. Feb. 29, 2016); Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.2010); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006) (citing Taylor v. United States, 495 U.S. 575 (1990)).
1.
Under the categorical approach, we compare “the elements of the statute of conviction to the generic definition” of moral turpitude to determine whether the “conduct proscribed” by the statute of conviction “is broader than, and so does not categorically fall within, this generic definition.” Fernandez-Ruiz, 468 F.3d at 1163. The “issue is not whether the [petitioner‘s] actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.”6 Id. (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005)). In other words, “the key is elements, not facts.” Descamps v. United States, 133 S.Ct. 2276, 2283 (2013).
When performing a categorical analysis, the court “must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts criminalized,’ and then determine whether even those acts are encompassed by the generic” definition of moral turpitude. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). There must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the generic definition of moral turpitude. Id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); see also Castrijon-Garcia, 704 F.3d at 1212.
Crimes of moral turpitude are generally “of two types: those involving fraud and those involving grave acts of baseness or depravity.” Castrijon-Garcia, 704 F.3d at 1212. These two categories, however, are not exhaustive. Common law perjury—lying under oath during a judicial proceeding—has historically been regarded as a CIMT еven though it does not fit neatly into the two-part framework described below. We conclude 1) that section 118 goes well beyond common law perjury and 2) that it categorically involves neither fraud nor grave acts of baseness or depravity.7
a.
At common law, a person committed perjury by giving false testimony under oath. See United States v. Dunnigan, 507 U.S. 87, 94 (1993). Historically, and before the development of the two-category CIMT approach, courts held with little debate that common law perjury is a CIMT. See, e.g., Masaichi Ono v. Carr, 56 F.2d 772, 774 (9th Cir.1932) (“It is not to be doubted that the commission of perjury before the immigration officials is a felony involving moral turpitude.“); U.S. ex rel. Boraca v. Schlotfeldt, 109 F.2d 106, 108 (7th Cir.1940) (“That perjury is a crime involving moral turpitude, there can be no question, аnd the crime was completed when she made the false statement under oath.“); Wharton‘s supra § 574 (explaining that a person committed perjury at common law “when, under oath, he wilfully and corruptly [gave] false testimony on a material point in a judicial proceeding“). This conclusion recognizes the implicit harm in obstructing justice and the formality inherent in taking an oral oath in a judicial proceeding.
The conduct prohibited by section 118 extends far beyond the narrow meaning of common law perjury. Not only does section 118 reach past false testimony in the courtroom to non-case related lying, it also punishes lies where no oral oath, with its requisite solemnity, was required of the speaker. Seсtion 118 essentially creates a self-defining crime—whenever a document must be signed under penalty of perjury, the penalty of perjury applies. Thus, section 118 does not fit within the historical understanding of perjury and cannot be deemed a CIMT on that basis. Nor, as we demonstrate below, does it qualify as a CIMT under the modern two-category approach.
b.
Non-fraudulent CIMTs generally involve base, vile, and depraved conduct that shocks the public conscience.8 Turijan v. Holder, 744 F.3d 617, 621 (9th Cir.2014). The “essence of moral turpitude” is “evil or malicious intent.” Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir.2013). Crimes with such a mens rea “offend[] the most fundamental values of society.” Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir.2012). “That an offense contravenes societal duties is not enough to make it a [CIMT]; otherwise, every crime would involve moral turpitude.” Id. “Only truly unconscionable conduct surpasses the threshold of moral turpitude.” Id. at 708.
Section 118 encompasses conduct that does not qualify as base, vile, and depraved behavior. That one need not be competent to give the false statement demonstrates that not all section 118 convictions result from “evil or malicious intent.” See
Furthermore, section 118 does not categorically “offend[] the most fundamental values of society,” Robles-Urrea, 678 F.3d at 705, like murder, rape, incest, and harm-inflicting sex-related offenses do. See id. at 708; Gonzalez-Cervantes, 709 F.3d at 1269. Unlike these crimes, perjury does not necessarily involve “intent to harm,” “actual infliction of harm,” or “an action that affects a protected class of victim.” Castrijon-Garcia, 704 F.3d at 1213-14. Indeed, Darcy, who gave a false birthplace and name when registering to vote and was convicted of perjury in California, intended no harm, inflicted no harm, and did not adversely affect a protected class of victims. See Darcy, 59 Cal.App.2d 342.
In sum, we conclude that section 118 is not categorically a non-fraudulent CIMT.
c.
Although section 118 reaches beyond the narrow definition of common law perjury and is not categorically a non-fraudulent CIMT, it could categorically be a CIMT if it required an intent to defraud or sounded in fraud. “A crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either ‘explicit in the statutory definition’ of the crime or ‘implicit in the nature’ of the crime.” Blanco, 518 F.3d at 719 (quoting Goldeshtein v. INS, 8 F.3d 645, 650 (9th Cir.1993)).
First, the intent to defraud is not explicit in the statutory definition of section 118, especially in light of Blanco. There, we held that
The converse proposition underscores the rule. We have held that particular statutes are CIMTs because the intent to defraud is explicit in the statutory definition. See, e.g., De Martinez v. Holder, 770 F.3d 823, 825 (9th Cir.2014) (holding that
Conviction under section 118 does require proof of “intent that [the false statement] should be received as a statement of what was true in fact,” Tolmachoff, 58 Cal.App.2d at 821, but that requirement does not amount to an “intent to defraud” in this context. That an accused‘s lack of knowledge as to the materiality of the false statement is not a defense to section 118,
The next question is whether intent tо defraud is “implicit in the nature” of section 118. Blanco, 518 F.3d at 719. “[I]ntent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or nonmonetary.” Id. Because “[o]ne can act dishonestly without seeking to induce reliance,” fraudulent intent only exists “when the individual employs false statements to obtain something tangible.”10 Id. Fraud is
Our opinion in Bisaillon v. Hogan provides an example of where intent to defraud was not an explicit requirement for conviction, but this court nevertheless held that the crime was a CIMT. 257 F.2d 435 (9th Cir.1958). There, conviction under
3.
There is “a realistic probability, not a theoretical possibility, that [California] would apply [section 118] to conduct that falls outside” all the established definitions of moral turpitude. Moncrieffe, 133 S.Ct. at 1685. Once again, the facts of People v. Darcy provide a compelling example. As an initial matter, Darcy‘s conduct would not fall within the narrow meaning of common law perjury, which, as noted above, historically has been considered a CIMT. Further, Darcy was convicted under section 118 even though he did not commit a base or vile act, or one involving explicit or implicit fraud. Providing a false name and birthplace when one is entitled to vote without the false statements does not implicate “intent to harm,” “actual infliction of harm,” оr “an action that affects a protected class of victims.” Castrijon-Garcia, 704 F.3d at 1214. Darcy‘s actions were therefore not base or vile. Further, he was not convicted of an explicitly fraudulent CIMT because section 118 does not contain an element of intent to defraud. Finally, his actions contained no implicit fraud, as he was not “attempt[ing] to induce another to act to his or her detriment” or “obtain something tangible.”12 Blanco, 518 F.3d at 719. Because defendants like Darcy are convicted under section 118 without these essential elements, there is a “realistic probability” that section 118 “would apply” to conduct that is not morally turpitudinous. See Moncrieffe, 133 S.Ct. at 1685.
V.
Where, as here, a statute is not categorically a CIMT, we may, in some
A.
In Almanza-Arenas, we recently outlined the process for determining whether a statute is divisible. 809 F.3d at 522-28. First, we examine the text of the statute to determine whether it contains multiple crimes with distinct elements or alternative means for accomplishing a single crime. Second, we confirm our reading of the statute by looking to the conviction documents. Finally, we consider how state courts have construed the statute of conviction.
Section 118 is divisible into two discrete offenses.14 At step one, an examination of the statutory text suggests that section 118 contains several offenses rather than alternative means for committing perjury. First, an individual violates section 118 by making a false, oral statement under oath.
The conviction documents in the administrative record confirm this interpretation at step two. The documents relevant to this inquiry include the “indictment, jury instructions, plea colloquy, and plea agreement.” Descamps, 133 S.Ct. at 2281 n. 2. This list is “merely illustrative, and ‘documents of equal reliability may also be considered.‘” Coronado v. Holder, 759 F.3d 977, 985 (9th Cir.2014) (quoting United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.2008) (en banc) (per curiam)).
Here, the felony complaint used to charge Rosales Rivera demonstrates that section 118 contains two separate offenses. Count 2 of the complaint
Third, California courts have long recognized the division in section 118. Hedgecock, 51 Cal.3d at 404 n. 1 (explaining that “Penal Code section 118 prohibits both perjurious testimony under oath (the elements are set forth in CALJIC No. 7.20) and perjurious, signed declarations (covered by CALJIC No. 7.21)“). The fact that separate jury instructions exist for each of the two offenses in section 118 bolsters a finding of divisibility. Compare CALJIC 7.20 (2005 Revision) (“Perjury Under ‘Oath‘“) with CALJIC 7.21 (2005 Revision) (“Perjury Under ‘Penalty of Perjury‘“). Notably, to prove written perjury, the prosecution must shоw that the statement was “delivered to another person ... with the specific intent that it be uttered or published as true,” an element that is not required for perjury under oath. See Collins v. Super. Ct., 89 Cal.App.4th 1244, 1247 (2001) (explaining that “it is the finality of the writing and its delivery which constitutes an essential element of the crime of perjury. This is to be distinguished from the giving of false testimony before the judge, jury or tribunal responsible for deciding the matter at issue. Such testimony constitutes perjury when the words are spoken....“).
Our conclusion that section 118 is divisible finds further support in the fact that an individual cannot violate the statute‘s two offenses simultaneously. See Rendon, 764 F.3d at 1087 (describing two decisions that found statutes divisible in part because “it was impossible for the state to allege and the jury to find that the defendant violated the alternative parts of the statute simultaneously“). Rather, making a false statement under oath before a tribunal and making a written false statement under penalty of perjury are separate offenses that necessarily involve different conduct.
B.
Because section 118 is divisible, we apply the modified categorical approach to determine “which alternative element in a divisible statute formed the basis of the defendant‘s conviction.” Descamps, 133 S.Ct. at 2293. This analysis allows the court to “effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in thе defendant‘s conviction.” Id. at 2283. As we described when considering section 118‘s divisibility, Rosales Rivera pled no contest to a felony complaint that charged him with written perjury rather than oral perjury.
For the reasons discussed supra Part IV.B.2., the specific offense of written perjury is not a CIMT. First, written perjury criminalizes entirely different conduct than common law perjury, which focused on false oral testimony given under oath. Second, written perjury, like the general section 118, criminalizes conduct that is not base, vile, or depraved. Third, written perjury does not require proof of an intent to defraud; in fact, conviction is proper even if the accused had no knowledge that his false statement was material. And fourth, written perjury does not sound implicitly in fraud because it does not require proof of intent to either induce another to
VI. Conclusion
We hold that
Petition GRANTED and REMANDED.
V.
Thomas PEREZ, in his official capacity as Secretary of the U.S. Department of Labor; Laura Fortman, in her official capacity as Deputy Administrator of the U.S. Department of Labor; U.S. Department of Labor, Defendants-Appellants.
Joseph Cesarz; Quy Ngoc Tang, individually and on behalf of all others similarly situated, and all persons whose names are set forth in Exhibit A to the First Amended Complaint, Plaintiffs-Appellants,
V.
Wynn Las Vegas, LLC; Andrew Pascal; Steve Wynn, Defendants-Appellees.
Nos. 13-35765, 14-15243.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 10, 2015.*
Filed Feb. 23, 2016.
OREGON RESTAURANT AND LODGING ASSOCIATION, a non-profit Oregon corporation; Washington Restaurant Association, a nonprofit Washington corporation; Alaska Cabaret, Hotel, Restaurant & Retailers Association, a non-profit Alaska corporation; National Restaurant Association, a nonprofit Illinois corporation; Davis Street Tavern LLC, an Oregon limited liability company; Susan Ponton, an individual, Plaintiffs-Appellees,
* We heard oral argument in these two cases together, and we now consolidate them for disposition. See Fed. R.App. P. 3(b)(2); Mattos v. Agarano, 661 F.3d 433, 436 n. 1 (9th Cir.2011) (en banc).