Argument Recap: Gonzales v. Duenas-Alvarez on 12/5

The following argument recap is by Steven Wu, an attorney at Akin Gump. His preview of this case can be found here.

On Tuesday, December 5, the Supreme Court heard argument in Gonzales v. Duenas-Alvarez (No. 05-1629). The question in the case was whether a violation of California Vehicle Code § 10851, which prohibits the taking or driving of a vehicle “without the consent of the owner,” is a deportable “theft offense” under federal immigration laws. The Ninth Circuit held that it was not because the statute extended liability to aiding and abetting, which is beyond the scope of federal law.

Dan Himmelfarb from the Solicitor General’s Office argued on behalf of the United States. Justice Souter led off with a question about the exact contours of the natural-and-probable consequences doctrine. After some initial confusion, in which Justice Scalia joined, Mr. Himmelfarb clarified that under this doctrine a person may be found guilty of aiding and abetting a subsequent crime that was the natural and probable consequence of the “target” crime that he actually intended to aid and abet, but that the person would have to be charged with the subsequent crime.

Several members of the Court were concerned with whether the Court should address some of the arguments raised by Duenas-Alvarez, which were arguably not discussed below. Justice Ginsburg wondered why the Court should be the first to resolve these arguments, when the Ninth Circuit relied exclusively on a rule that a “theft offense” under federal immigration laws did not include aiding-and-abetting liability. Justice Scalia suggested that because most of these novel arguments were raised by the respondent, the Court could reach them because “[t]he respondent can seek to uphold the judgment below on whatever grounds he wishes.” The Chief Justice also seemed willing to address all of the parties’ arguments, noting that all of their claims were essentially addressing the same basic question: whether California Vehicle Code § 10851 encompasses conduct outside the generic definition of a “theft offense.” Nevertheless, Mr. Himmelfarb urged the Court to not consider any of Duenas-Alvarez’s arguments that were unrelated to aiding-and-abetting liability.

The Court was also concerned with the breadth of the government’s argument, which said, essentially, that minor variations between a state’s aiding-and-abetting laws and the general law of aiding and abetting were irrelevant. Justice Alito asked whether a “theft offense” under federal immigration law encompasses liability under “an entirely novel and fundamentally different theory of aiding and abetting.” Mr. Himmelfarb suggested that the Court could defer resolving Justice Alito’s hypothetical because this case did not involve such a novel theory. Justice Scalia asked if the government would be opposed to a “narrower ground” for reversal: namely, that California law does not stray beyond the general law of aiding and abetting. Mr. Himmelfarb did not oppose such a narrow ruling, but returned almost immediately to the government’s position that the Ninth Circuit should be reversed even assuming that California aiding-and-abetting law deviated from general law in some fashion. However, in response to a question from Justice Scalia, Mr. Himmelfarb clarified that the government’s argument applied only to variations in aiding-and-abetting liability, not to variations in the basic definition of theft (and, presumably, other substantive crimes).

Mr. Himmelfarb’s argument ended with a somewhat detailed examination of joyriding. In response to a question from Justice Ginsburg, who asked about the difference between the provision at issue here and the grand theft auto provision of the California Penal Code, Mr. Himmelfarb admitted that the provision here encompasses joyriding — a taking or driving of a vehicle without any intent to permanently deprive the owner of possession. Nevertheless, Mr. Himmelfarb suggested that the Court should not be troubled that joyriding — a seemingly minor crime — would be a deportable offense under the government’s theory. Two limitations in the federal law restrict deportation to only serious joyriding offenses: first, the defendant must have an intent to deprive the owner of property; and second, the defendant would have to actually be sentenced to at least a year in prison.

Christopher J. Meade of Wilmer Hale argued for Duenas-Alvarez. The discussion again focused at the outset on joyriding. Justice Breyer wondered why joyriding wasn’t included in the generic definition of a “theft offense,” when that definition includes less-than-permanent deprivations of property. Mr. Meade’s answer — that a permanent deprivation is not necessary, but a deprivation “for an unreasonable amount of time” is — faced further questioning from Justice Scalia and Justice Breyer, the latter of whom asked rather pointedly for a source for Mr. Meade’s characterization of the law.

In one of the argument’s lighter moments, Mr. Meade clarified that under California law joyriding required that the defendant return the joyridden car to the place where he originally found it. “What’s the joy in that?” asked the Chief Justice. “The joy, apparently,” replied Justice Scalia, “is you don’t get convicted of theft.”

Several justices pressed Mr. Meade on his argument that California Vehicle Code § 10851 reached beyond the generic definition of a “theft offense” because it encompassed liability for accessories after the fact. Justice Ginsburg questioned whether the meaning of “accessories” in § 10851 was the same as the meaning of that word in the California Penal Code, where it expressly includes accessories after the fact. Justice Alito asked, twice, whether Mr. Meade was asking the Court to decide a disputed issue of state law. Justice Scalia, Justice Ginsburg, Justice Souter, and the Chief Justice asked whether it wasn’t apparent from court documents (such as the charging document) that Duenas-Alvarez was not charged as an accessory after the fact. Mr. Meade argued that it was not, but also urged the Court to consider remanding rather than deciding if it thought the Ninth Circuit should have applied the modified categorical approach.

Both Justice Breyer and the Chief Justice seemed concerned with the reach of Mr. Meade’s argument. Each asked, in different ways, whether Mr. Meade wasn’t focusing on too theoretical of an inquiry: whether it was merely possible that somebody could be convicted as an accessory after the fact under California Vehicle Code § 10851. Mr. Meade admitted that he had no examples of actual convictions for being an accessory after the fact, but he asserted that the text of § 10851 clearly included such liability.

Justice Breyer directed the questioning to the natural-and-probable consequences doctrine. Again, the justices seemed concerned with nailing down the exact contours of the doctrine. Mr. Meade gave several examples that seemed to have an effect on the justices, including a 2002 California case in which rape was held to be a natural and probable consequence of robbery. Justice Scalia noted that this result “sounds like the doctrine of unnatural improbable consequences.” Mr. Meade did not disagree. In his conclusion, he emphasized that California’s particular natural-and-probable-consequences doctrine was far broader than most other states’, and that this case should turn on the oddness of California law.

In Mr. Himmelfarb’s rebuttal argument, Justice Kennedy led off with a suggested burden-shifting rule to resolve this case: “[W]hen there is a novel or an unusual theory of potential liability . . . which would exonerate [a defendant] from application of this [deportation] statute . . . he has the burden to show that that’s what happened.” Mr. Himmelfarb did not disagree with this proposed rule, but he returned to his argument that Congress intended to deport defendants such as Duenas-Alvarez.

Finally, Justice Souter expressed his concern that the government was attempting to incorporate an unusual (or at least minority) theory of aiding-and-abetting liability into the generic definition of a “theft offense.”