US Supreme Court: 05-1629

8/14/2019 US Supreme Court: 05-1629

http://slidepdf.com/reader/full/us-supreme-court-05-1629 1/65

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

ALBERTO R. GONZALES,

ATTORNEY GENERAL,

Petitioner

:

:

:

v. : No. 05-1629

LUIS ALEXANDER DUENAS-ALVAREZ. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Tuesday, December 5, 2006

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:06 a.m.

APPEARANCES:

DAN HIMMELFARB, ESQ., Assistant to the Solicitor

General, Department of Justice, Washington, D.C.; on

behalf of the Petitioner.

CHRISTOPHER J. MEADE, ESQ., New York, N.Y.; on behalf of

the Respondent

1Alderson Reporting Company



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


C O N T E N T S

ORAL ARGUMENT OF PAGE

DAN HIMMELFARB, ESQ.

On behalf of the Petitioner 3

ORAL ARGUMENT OF

CHRISTOPHER J. MEADE, ESQ.

On behalf of the Respondent 23

REBUTTAL ARGUMENT OF

DAN HIMMELFARB, ESQ.

On behalf of the Petitioner 50




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


P R O C E E D I N G S

(10:06 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

first today in case 05-1629 Gonzales versus

Duenas-Alvarez.

Mr. Himelfarb.

ORAL ARGUMENT OF DAN HIMMELFARB

ON BEHALF OF PETITIONER

MR. HIMMELFARB: Mr. Chief Justice, and may

it please the Court.

The Ninth Circuit held that the term theft

offense, an aggravated felony under the Immigration and

Nationality Act, does not include aiding and abetting.

That holding is incorrect. Indeed, it is so clearly

incorrect that even respondent does not defend it.

Respondent's aiding and abetting argument is that his

violation of the California vehicle theft statute is not

a theft offense under the INA, not because the

California statute covers aiding and abetting and the

theft offense does not, as the Ninth Circuit held, but

because the California statute covers a certain kind of

aiding and abetting, so-called natural and probable

consequences rule, and a theft offense does not.

That theory is slightly narrower than the

Ninth Circuit's but it is mistaken for many of the same




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


reasons. One of the reasons that the Ninth Circuit's

holding is mistaken is that it would drastically limit

the number of aliens who could be treated as aggravated

felons based on a conviction obtained in any

jurisdiction, because no jurisdiction distinguishes

between principals and aiders and abetters and it is

ordinarily not possible to prove that an alien in a

particular case was not convicted as an aider and

abettor. Respondent's theory would have the same effect

when a conviction was obtained in any jurisdiction that

obtains the natural and probable consequences rule.

JUSTICE SOUTER: Will you help me out on one

mechanical point? As you probably know from your brief,

I don't come from a jurisdiction that uses this rule and

I'm just not used to it. I had thought -- and I guess

I'm wrong -- that if the natural and probable

consequences theory were used to prove, let's say,

ultimately the offense of assault, in what started out

as a theft case, that there would have to be a separate

charge of assault but that the theory of proof would be

the natural and consequences extension of aiding and

abetting so that there would at least be on the record a

charge of assault.

And I take it that's not the case.

MR. HIMMELFARB: I -- I don't think it is.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


I --

JUSTICE SOUTER: Otherwise, you wouldn't

have this problem.

MR. HIMMELFARB: Well, it is the case that

the aider and abettor has to intend to aid and abet what

is sometimes called the target crime. It also has to be

the case that the principal has to then go on to commit

some other crime, a subsequent crime. The issue then

arises whether the aider and abettor who intended to

assist the target crime is held liable for the

subsequent crime.

JUSTICE SOUTER: But in any case in my

example of -- of theft, and the further offense under

natural and probable consequences being assault, the

only charge against the defendant who aided and abetted

would be a charge of theft; is that correct?

MR. HIMMELFARB: It could be. It could be.

But in the course of proving the aider and abettor

guilty of the subsequent crime on this natural and

probable consequences theory, there would have to be

proof that bore upon the target crime to show what his

intent was with respect to the target crime and also

whether the subsequent crime was a foreseeable

consequence of the initial crime.

JUSTICE SCALIA: I don't understand it. How




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


can he be convicted of -- of the consequential crime if

he is never charged with the consequential crime? You

charge him with the -- with the theft and convict him of

assault?

MR. HIMMELFARB: No, Justice Scalia. He

would have to be charged with the subsequent crime.

JUSTICE SCALIA: Okay, well I thought you --

I thought you answered --

JUSTICE SOUTER: Me too.

MR. HIMMELFARB: I didn't mean to say that.

I meant to say he didn't have to be charged with the

initial crime. In fact, even the principal wouldn't

have to be charged with the initial crime or for that

matter, any crime. The aider and abettor could be

charged only with a consequent crime but in the course

of proving that under the natural and probable

consequences rule, there would have to be proof with

respect to the target crime, because the elements of the

natural and probable consequences rule depend upon what

happened.

JUSTICE SCALIA: The theory being that

anybody who intended to aid and abet a crime which

naturally leads to another crime intended the other

crime as well.

MR. HIMMELFARB: That's the basic principle.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


JUSTICE GINSBURG: Mr. Himmelfarb, does the

government urge that we consider the point that you're

now arguing and the other points? You started out by

saying everyone agrees that the rationale of the Ninth

Circuit won't wash, but if we go beyond that, then we

are deciding the question as a matter of first view

instead of review.

Does the government urge that we dispose of

those issues anyway, even though they were not disposed

of by the Ninth Circuit?

MR. HIMMELFARB: We think that the aiding

and betting argument that respondent raises is fairly

included within the question presented and that it

should be resolved. We don't think the other two issues

are fairly included within the question presented.

We think that this issue is fairly presented

within the -- fairly included within the question

presented and should resolve --

JUSTICE GINSBURG: But it wasn't discussed

by the Ninth Circuit, was it?

MR. HIMMELFARB: It wasn't,

Justice Ginsburg, but it bears upon the question of what

it means to say that an aggravated felony encompasses

aiding and abetting. If the Court simply holds contrary

to the Ninth Circuit's holding that aiding and abetting




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


is included in an aggravated felony, it will leave open

a very important question which we think the Court

should provide guidance to the lower courts on. It

would leave open the question of whether that means that

there is some general Federal immigration law definition

of aiding and abetting with which the law of aiding and

abetting in the jurisdiction of conviction would have to

be compared in every single removal case, at least

potentially, or rather as we would submit, that Congress

intended to cover the entire range of aiding and

abetting under whatever formulation was used in any

jurisdiction at the time the aiding and abetting

provision was added to the Immigration and Nationality

Act.

JUSTICE SCALIA: And what about the

remaining questions that were not decided by the Ninth

Circuit?

MR. HIMMELFARB: Well, certainly the --

JUSTICE SCALIA: Do we remand for those or

what?

MR. HIMMELFARB: Yes. It's open to -- it

would be open to the Ninth Circuit. Assuming the Ninth

Circuit were of the view that they were fairly raised in

the Ninth Circuit, and also that they were fairly raised

in the agency, it would be open to the Ninth Circuit to




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


resolve those questions in the first instance. Let me

just add that --

JUSTICE GINSBURG: Why would it have to be

raised in the Ninth Circuit? I thought this case was

controlled by a prior decision of the Ninth Circuit.

Therefore, there was nothing more that was needed to

take care of this case.

MR. HIMMELFARB: That's true. The Ninth

Circuit didn't pass upon any issue except the question

whether aiding and abetting as a general matter is

included in a theft offense. Relying on a prior

decision, it held that it wasn't, and sent the case back

to the Board of Immigration Appeals. But there, I think

it would still be fair for the government to argue that

a particular theory that may be raised here in defense

of the judgment wasn't properly raised either in the

Ninth Circuit by respondent, or before the agency, such

that that claim was not properly exhausted.

JUSTICE SCALIA: Mr. Himelfarb, you point

out these last two issues are not, and probably

correctly, that they are not fairly included within the

question presented. Well, that would be disabling if

indeed it was the petitioner that is seeking to raise

those two additional issues. But here it is the

respondent; and we can certainly reach those issues if




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


we want to.

MR. HIMMELFARB: Of course. Of course.

JUSTICE SCALIA: The respondent can seek to

uphold the judgment below on whatever grounds he wishes.

MR. HIMMELFARB: Of course.

JUSTICE SCALIA: So we can reach those other

issues if we wish.

MR. HIMMELFARB: It's ultimately a matter of

the Court's discretion. Our submission is that the

wiser exercise of the Court's discretion would not --

would be not to address the issue, particularly the last

issue raised in respondent's brief.

CHIEF JUSTICE ROBERTS: Well, the only thing

that the Ninth Circuit held was that the definition of a

theft offense in California is broader than the generic

definition of theft. All of these arguments that are

being discussed are ways in which that particular ruling

is supported. I don't know why they wouldn't be

considered subsumed under the Ninth Circuit's decision.

MR. HIMMELFARB: Well, Mr. Chief Justice, we

don't read the Ninth Circuit's order that way. We think

the Ninth Circuit simply reversed on the strength of its

prior decision in Penuliar. And in Penuliar, the Ninth

Circuit clearly held the reason this California statute

was not a theft offense was that conviction under it is

10

Alderson Reporting Company



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


possible under an aiding and betting liability theory.

So insofar as the order relied on Penuliar, it was

saying nothing more and nothing less than that

respondent's conviction was not a theft offense because

it is theoretically possible he was convicted as an

aider and abettor and the definition of theft offense

under the INA does not include aiding and abetting.

Now as I was saying, I think it's important

for the Court to make clear what it means to say, that

aiding and abetting is included in the aggravated felony

definition. And this -- the type of argument that

respondent raises here, I think is important to keep in

mind, is not limited to the particular aspect of aiding

and abetting law on which he relies.

There are a great many different

formulations of the basic requirements of aiding and

betting. Not only that they -- they vary not only from

jurisdiction to jurisdiction but even within

jurisdictions. So in the next case, you could imagine

an alien or removal case arguing that because some other

requirement of aiding and abetting law in the

jurisdiction in which he was convicted is broader than

the more typical formulation, that even though he was

clearly convicted of, for example, murder, and even

though the elements of murder in that jurisdiction

11




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


perfectly match up with the federal definition of murder

in the immigration statute --

CHIEF JUSTICE ROBERTS: Counsel, you're

ahead of me, and I'm still back on the last question,

but I take it your rationale for not reaching these

other grounds would also apply to your argument that

whatever the categorical definition, that this defendant

was convicted of an actual theft offense, looking at the

charging documents. That wasn't a basis for the Ninth

Circuit's decision either.

MR. HIMMELFARB: That's true, Mr. Chief

Justice. Our main submission is that the Ninth Circuit

relied on an issue of aiding and abetting. We

petitioned on that question and the Court granted

certiorari on that question.

The three grounds on which respondent relies

on defense of the judgment, even though they all vary in

some sense from the Ninth Circuit's ground, two of them

simply have nothing to do with aiding and abetting. The

first ground is an aiding and abetting argument. It's

slightly different from the one, slightly narrower than

the one on which the Ninth Circuit relied, but we think

it's fairly included and we think the Court should

address it. We think the Court should reject it for the

reasons I am attempting to articulate now.

12




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


If you have a jurisdiction with a law of

aiding and abetting that is broader, it can be

characterized as broader in some sense than what might

be thought to be the general notion of aiding and

abetting, under the premise of respondent's theory, you

could conceivably have this kind of argument in any

removal case --

JUSTICE ALITO: What if a particular

jurisdiction has an entirely novel and fundamentally

different theory of aiding and abetting? Is it simply

sufficient that it is labeled aiding and abetting?

MR. HIMMELFARB: Well, Justice Alito, we

think it would be perfectly appropriate for the Court to

leave open the question that if at some point in the

future, some entirely novel radical far-reaching theory

of aiding and abetting were adopted, that would not be

sufficient. I don't think as the law currently stands

there is any such theory in any jurisdiction; and I

think that Congress should be presumed when it enacted

the aggravated felony provision, to be covering the

field of possibilities. But if at some point in the

future some jurisdiction decided that, you know,

somebody could be strictly liable --

JUSTICE STEVENS: Mr. Himmelfarb, what about

accessory after the fact, do your comments apply to that

13




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


argument as well?

MR. HIMMELFARB: Well, we think that that's

not fairly included within the question presented. We

think that's just a -- accessory after the fact is a

separate crime

JUSTICE STEVENS: Well, it may not be fairly

included but as you've acknowledged, it is an argument

asserted to defend the judgment.

MR. HIMMELFARB: That's right. We think

that the Court could resolve that issue along the lines

we've suggested in our reply brief. Respondent's basic

submission on that point is that the term -- the phrase

in the California statute, any person who is a party or

an accessory to or an accomplice in the driving or

unauthorized taking or stealing, that in that phrase the

term accessory means accessory after the fact. An

accessory after the fact is not included in the

definition of the theft offense. Therefore, the

California statute is broader than a theft offense.

It's our submission that the Court can assume that he's

right about that but still rule for the government on

the accessory after the fact issue, because whatever the

statute might say, he was charged as a principal. And

the law is clear that somebody charged as a principal --

JUSTICE GINSBURG: How do we know that? I

14




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


was looking at, what is it, 13-A? How do we know that

that charge is as a principal? In the appendix to the

petition.

MR. HIMMELFARB: Well, Justice Ginsburg, it

tracks the language of the statute up to the point where

the statute uses the phrase I just read.

So it's principal language. It's

theoretically possible that he was convicted as an aider

and abettor because the law in California, as it is

elsewhere, is that somebody charged as a principal can

be convicted as an aider and abettor; but the law in

California, as it is elsewhere, is that somebody charged

as a principal cannot be convicted as an accessory after

the fact. There is no language in the charging

instrument to suggest that respondent was charged as an

accessory after the fact.

JUSTICE SOUTER: But to accept your answer,

we've got to look into a question of California pleading

law which hasn't been passed on below.

MR. HIMMELFARB: Well, that's right.

Respondent raises a number of arguments in response

essentially to the argument I just made. We think

they're all entirely insubstantial and could be rejected

quite easily. But it may well be that the Court would

think that the better course is not to address the

15




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


accessory after the fact issue.

JUSTICE SCALIA: Why wouldn't the better

course be also not to decide the principal question you

want us to decide on the broad ground that you want us

to take, which is that if there are minor differences

between what you might call the general law of aiding

and abetting, it doesn't matter. Why wouldn't it be

wiser to decide this on the simple ground that this kind

of consequential liability is part of the general law of

aiding and abetting, which you argue in your brief?

So that would be the narrower ground.

MR. HIMMELFARB: That would be narrower

ground. That is certainly our fallback position and we

would not be at all unhappy if the case were resolved on

that ground.

JUSTICE GINSBURG: Even though that position

has been widely criticized, I think. Is it the

ALI Model Penal Code, which thinks it's a bad rule?

MR. HIMMELFARB: There has been some

criticism of the rule, Justice Ginsburg, but it is

applied in criminal cases in Federal courts; and

whatever criticism there might be in the academic

literature, even in some state decisions, we think it is

just inconceivable that Congress would have intended

that somebody could be convicted under this theory under

16




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


the Federal criminal law and be subject to the same

criminal penalties as a principal, and yet under the

federal immigration law could not be subject to the same

immigration consequences as a principal. So whatever

grounds there are for criticizing it, it is the law in

most places. And most importantly, we think, it is the

law in Federal courts.

Taking account of minor variations in

formulation of aiding and abetting standards among

jurisdictions would not only have the consequence of

drastically limiting the number of aliens who could be

found to be aggravated felons, because of the difficulty

of establishing that someone was convicted as a

principal rather than an aider and abettor. It would

also complicate removal cases enormously, as I

mentioned.

The premise of respondent's aiding and

abetting theory would suggest that in any case, it would

be necessary for the immigration judge, board of

immigration appeals and the reviewing court, to engage

not only in an analysis of whether the principal offense

of conviction matches some Federal definition, which

itself can be a quite complex enterprise, but having

done that, it would then have to go on and compare the

aiding and abetting law of the state of conviction with

17




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


some Federal aiding and abetting law.

JUSTICE SCALIA: In that former question as

to whether California theft is general theft, do you

propose the same rule? That even if California has some

minor variations -- not just in aiding and abetting but

in what constitutes theft -- minor variations from what

the general national rule is, they should be

disregarded? And if not, why not?

MR. HIMMELFARB: Well, we think that -- we

don't, first of all.

And I think no court would say that and we

certainly wouldn't. But there's a very important

difference insofar as that type of comparison was

concerned between on the one hand a principal offense

and on the other hand aiding and abetting. The two

important differences are if you have a general

definition of the principal offense, whether it's a

theft offense or burglary, any reasonable framework

would contemplate that in a great many cases you would

be able to tell whether the alien before the court was

convicted of that offense, of the Federal definition of

that offense, simply by looking at the State statute of

conviction; and if it matches it, that's the end of the

analysis. If it's broader, in most cases you'd be able

to look at the charging instrument and see whether that

18




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


person was charged with something narrower than the

whole range of conduct that's covered by the statute.

Under respondent's theory, if you were

to apply that same approach to aiding and abetting you

would never be able to look at the statute to see

whether somebody was convicted under an aiding and

abetting theory that matches the Federal definition

because every statute includes aiding and abetting, so

it's impossible to tell from the statute whether

somebody was convicted as a principal or an aider and

abettor.

Then if you look at the charging

instrument, that won't suffice either because the law

everywhere as far as I'm aware is that somebody charged

as a principal can be convicted as an aider and abettor.

So the only cases in which you'd be able to establish

that somebody was not convicted as an aider and abettor

are the unusual cases where there happens to be

something in the files of the criminal case that will

explain in some admissible fashion whether the defendant

was convicted as a principal or an aider and abettor.

That's the first important distinction. The second --

JUSTICE SCALIA: So you would limit your

rule just to aiding and abetting and not to other minor

variations, just minor variations in the aiding and

19




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


abetting definition?

MR. HIMMELFARB: That's right. I mean, our

submission is that Congress's intent in enacting an

aggravated felony provision that captures aiders and

abettors was that minor variations in formulation

wouldn't matter for the reasons I'm giving. So it's

ultimately a matter of Congressional intent.

The second reason why this is important is

because if you were to apply that rule to aiding and

abetting you would be saying, in effect, that in any

jurisdiction that applies a broader rule of aiding and

abetting every single crime in the criminal code would

not qualify for aggravated felony status, because an

aiding and betting statute runs with the entirety of the

criminal code and is a potential theory of liability for

every substantive criminal offense. So that would mean

that in those, those broader aiding and abetting

jurisdictions, nothing could ever be an aggravated

felony unless the government could somehow search

through the criminal files and find something to prove

that in fact the defendant was not convicted under an

aiding and abetting theory.

JUSTICE GINSBURG: Mr. Himmelfarb, before

your time runs out, there's something curious about this

California statute. This one is in the Motor Vehicle

20




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Code, and there's this offense in the Penal Code called

car theft. Do you know what the difference between

those two and what would move a prosecutor to charge

under the Penal Code as opposed to the Vehicle Code?

MR. HIMMELFARB: Well, the theft offense

that covers cars under than this one in California that

I'm aware of, Justice Ginsburg, is just a grand theft

statute, which is just general theft as applied to

particular circumstances, one of which is the theft of a

car.

JUSTICE GINSBURG: That's mentioned in what,

487(d)?

MR. HIMMELFARB: That's right. That's

right. And as I understand it, that is essentially a

larceny statute, which encompasses a common law larceny

rule, which is that there has to be an intent to steal

or, stated differently, that there has to be an intent

to deprive the owner of the car, of the car permanently,

whereas the California vehicle theft statute at issue

here is a broader statute in that it doesn't require any

intent to steal. It doesn't even require a taking. A

driving is sufficient. So it would capture the receipt

of stolen property. And it doesn't require an intent to

deprive the owner of the car permanently. It would be

sufficient if there was an intent to deprive the owner

21




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


of the car temporarily.

JUSTICE GINSBURG: It covers joyriding?

MR. HIMMELFARB: Well, it would cover -- it

would cover what is colloquially known as joyriding if

it fell within the terms of the statute. That is, if

there was an intent to deprive the owner of the

property. And on the subject of joyriding, let me --

JUSTICE GINSBURG: Temporarily.

MR. HIMMELFARB: At least temporarily.

Respondent makes much of the fact that on

our reading of the statute, on our understanding, that a

theft offense would cover the California vehicle theft

statute here. That would mean that joyriding would be

included. But I think it's critical to keep in mind

that there are two very important limitations in the

Federal definition of theft offense. The first is that,

as interpreted by the Board of Immigration Appeals, it

does require an intent to deprive the owner of property,

and a great many unauthorized use of vehicle statutes in

the State don't have that element. That's one important

limitation.

The other is that many of these statutes are

misdemeanor statutes, so somebody convicted of it would

not be sentenced to more than a year in prison. By the

terms of the theft offense provision of the aggravated

22




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


felony provision in the INA you have to be sentenced to

at least a year in prison in order to be treated as an

aggravated felon. So we think the vast majority of what

is colloquially known as joyriding cases would not fall

within this particular aggravated felony.

JUSTICE GINSBURG: But in California they

would? Or is there a separate joyriding --

MR. HIMMELFARB: No. Joyriding in

California would be prosecuted under this statute. But

unless there was an intent to deprive, there could be no

conviction, and unless the sentence was at least a year

it would not be treated as an aggravated felony.

JUSTICE SCALIA: Is it the sentence given or

the sentence prescribed for the crime?

MR. HIMMELFARB: The sentence given, Justice

Scalia.

JUSTICE SCALIA: Given.

MR. HIMMELFARB: I'd like to reserve the

remainder of my time.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Himmelfarb.

Mr. Meade.

ORAL ARGUMENT OF CHRISTOPHER J. MEADE

ON BEHALF OF RESPONDENT

MR. MEADE: Mr. Chief Justice, and may it

23




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


please the Court:

I would like to pick up on the point made by

Justice Ginsburg. This case does not involve a

conviction under California's car theft statute, which

is Penal Code 487(d), which requires an intent to steal.

Rather, it involves a conviction under California's

Vehicle Code, which covers varied and less serious

conduct including liability with or without the intent

to steal and also expressly reaching accessories after

the fact, which the Government concedes would make it

broader than the generic definition of theft.

The question is whether a conviction under

this statute is a theft offense and therefore an

aggravated felony triggering the extremely serious

consequences of automatic deportation from the United

States, a permanent bar from the United States, and in

the sentencing context a sentencing enhancement from 2

to 20 years for illegal reentry.

CHIEF JUSTICE ROBERTS: Your friend began

his argument by saying you don't defend the decision of

the Ninth Circuit below on aiding and abetting. Is that

correct?

MR. MEADE: We do defend the judgment of the

Ninth Circuit.

CHIEF JUSTICE ROBERTS: I know the judgment,

24




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


but you focused at least primarily on other grounds than

the one on which the Ninth Circuit relied.

Is he correct that you concede that merely

because the statute extends to aiders and abettors that

is not sufficient to take it out of the categorical

treatment?

MR. MEADE: As an abstract general matter

divorced from the facts of this case and divorced from

California law, we agree that aiding and abetting

liability is part of a generic definition of any crime,

including the theft offense here.

However, that's not what the Ninth Circuit

stated in either this case or in Penuliar. In Penuliar

the Ninth Circuit stressed the extremely broad nature of

California's aiding and abetting liability. It cited a

case, People v. Beeman, which refers to the specific

natural and probable consequences doctrine under

California law.

So the Ninth Circuit was talking about the

broad sweep of aiding and abetting liability under

California law.

JUSTICE SCALIA: Could I ask a factual

question? I'm just curious. If the Government's

statement of the facts here is correct, your client, a

Peruvian, was convicted of burglary in 1992 and

25




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


convicted of possession of a firearm by a felon in 1994,

and nonetheless was made a lawful permanent resident in

1998. How does that happen? Is that a mistake or --

how do we decide who's admitted as a lawful permanent

resident?

MR. MEADE: I don't know the answer to the

question except to state that those two, those

convictions did happen in the years that you state and

he did become a lawful permanent resident in 1998.

I believe it was through a waiver provision

under the INA that that's how he became a lawful

permanent resident.

JUSTICE SCALIA: He's not a joyrider anyway.

MR. MEADE: I would disagree with that. All

we know in this case from the record is that he was not

charged with 487(d) car theft, which requires an intent

to steal. He was rather charged under a conviction

which covers joyriding.

In my reading of the Government's brief, the

Government doesn't contest that joyriding would put a

statute outside the generic definition of theft offense.

Even in the Government's presentation today, the

Government suggested that in most States joyriding would

be outside the generic definition of --

JUSTICE BREYER: So then the Ninth Circuit

26




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


was wrong in your opinion when it defined generic theft

as the taking or exercising control over property

without consent, with the intent to deprive the owner of

rights and benefits, even if it is less than permanent

or total? They're wrong in your opinion?

MR. MEADE: No, I don't think they're wrong.

JUSTICE BREYER: Well then, I don't see

how you make --

MR. MEADE: Sure. I'd be happy to --

JUSTICE BREYER: Isn't that

inconsistent with what you just said?

MR. MEADE: No.

JUSTICE BREYER: Why not?

MR. MEADE: No, it's not inconsistent. We

don't take the position that a permanent deprivation is

required, is required. A less than permanent

is sufficient, as the Ninth Circuit stated in

Corona-Sanchez. The Ninth Circuit has subsequently held

that a joyriding offense is outside that definition

because it includes a brief taking with an intent to

return, and the last footnote of the Government's brief,

note 8, cites that Ninth Circuit case.

JUSTICE BREYER: I don't understand how that

could be right, though. I mean, when you joyride it's

less than personal. In other words, their definition is

27




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


if you take somebody else's property for an hour that

that isn't theft, but if you take it for a day it is?

MR. MEADE: The question has to do with how

long of the taking. And at common law --

JUSTICE BREYER: They're trying to -- is

there a common law, because they're trying to report --

is under the common law there a rule or any generic rule

that says if you take somebody else's property for a

couple of hours it is not theft, but if you take it for

several hours or several days it is theft?

MR. MEADE: There is a generic rule on this,

and there is a consensus among the vast majority of

States. I point to both Professor LeFave as well as the

Model Penal Code. And what these rules say -- and this

is true in the vast majority of States, 42 States by our

count -- is that if you take either permanently or for

an unreasonable amount of time such that it would

deprive the owner of the significant portion of the

economic value, then that constitute a theft offense.

JUSTICE SCALIA: You shouldn't steal it for

an unreasonable amount of time, just for a reasonable

amount of time?

MR. MEADE: Excuse me.

JUSTICE SCALIA: I don't understand the

concept of stealing something for a reasonable amount of

28




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


time.

MR. MEADE: Well, I mean, that goes to the

exact point, Justice Scalia, because we're not -- the

question is what is stealing. The question --

JUSTICE BREYER: You're saying that the rule

is something is theft only if you take it long enough to

deprive an owner of a significant portion of its value?

MR. MEADE: Or a reasonable time, or to

place --

JUSTICE BREYER: No, no, no. Wait. I want

to know where that comes from, because I would think I

have a Volvo. It lasts for about 30 years, apparently.

So I guess if you took my car for a year, that that then

would not be a theft, or maybe it would be. Where is

the source of the rule you just cited?

MR. MEADE: The source is the generic

definition as applied in all of the States.

JUSTICE BREYER: No, no. I want a book. I

want a book that will tell me that if they take my car

for a month it isn't theft, but if they take it for a

year it is. What book, or where do I look to verify

that this is common law? I'm not denying what you're

saying. I just want to know where to look.

MR. MEADE: Sure. Two sources. One would

be Professor LeFave in his discussion of what the intent

29




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


required for the different theft offenses; and the

second source would be the Model Penal Code when it sets

forth the requisite mens rea for theft offenses.

CHIEF JUSTICE ROBERTS: That was the third

reference to the Model Penal Code, so I have to ask. No

one's enacted the Model Penal Code, have they?

MR. MEADE: No. But in Taylor and in

Seidler this Court used the Model Penal Code as a

shorthand for the generic definition of a certain crime.

But we don't rely on the Model Penal Code.

CHIEF JUSTICE ROBERTS: Would you describe

the Model Penal Code as closer to restatement or

aspirational in terms of its reflection of the existence

of general law?

MR. MEADE: I would say that the Model Penal

Code is consistent with the majority view. On this

question of intent to steal, as we set forth in our

brief, 42 States hold what we say the law is, that an

intent to steal -- a theft offense requires a mens rea

more than taking with an intent to give back.

JUSTICE SCALIA: You assert, you assert it's

consistent with the majority view on this issue, not on

everything. What does it say about the death penalty?

MR. MEADE: I'm not sure what it says about

the death penalty. On this issue.

30




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


CHIEF JUSTICE ROBERTS: Is that what

joyriding is? That when you're done with your joy ride,

you return the car where you picked it up? I thought

they just abandoned it wherever you happen to be.

MR. MEADE: If you abandon the car wherever

you happen to be that's not joy riding. That's covered

by traditional larceny principles. In the, the case of

State v. Davis from 1875 involves that exact principle.

That is larceny in that case. But however, if someone

takes a car, a teenager, a neighbor takes a car, drives

it around the block, brings it back to the same place,

that is joyriding. That is covered by 108.51.

CHIEF JUSTICE ROBERTS: What's the joy in

that?

(Laughter.)

JUSTICE SCALIA: The joy apparently is you

don't get convicted of theft.

(Laughter.)

MR. MEADE: But what we have here is statute

that criminalized conduct less serious than car theft.

This is -- 108.51 is the only statute in California that

covers joyriding. There's a whole different provision

that deals with car theft. In cases where that's the

appropriate charge, prosecutors will charge the person

with car theft and meet the burden of proof. Here we're

31




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


dealing with a less serious crime, a less serious

statute and the question is whether this statute that

require a very minimal mens rea, with or without intent

to steal, is sufficient to lead to the very serious

consequences of being an aggravated felony.

CHIEF JUSTICE ROBERTS: Do you understand

that point to be what the Ninth Circuit relied on?

MR. MEADE: No. Absolutely not. The Ninth

Circuit didn't rely on that. It was presented to the

Ninth Circuit but the Ninth Circuit did not rely on

that.

CHIEF JUSTICE ROBERTS: So if we decided on

the question, the aiding and abetting question, they did

decide this would available to you to argue on remand?

MR. MEADE: Uh, yes.

CHIEF JUSTICE ROBERTS: Because you

presented it to the Ninth Circuit below.

MR. MEADE: Yes, it would.

I would like to also to address the question

of accessory liability under California law.

108.51 expressly covers accessories. The

Government concedes that if that term means accessory

after the fact, then this statute is outside the generic

definition of a theft offense. Under California law,

accessory has only one meaning, and that one meaning is

32




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


accessory after the fact. On that ground alone, this

statute is broader than a generic definition of theft

offense and would provide a -- an alternate ground of

affirmance in this case.

JUSTICE GINSBURG: Mr. Meade, the Government

says that definition holds for penal code offenses, but

it's not altogether clear that a definition in the penal

code would carry over to the vehicle code.

MR. MEADE: I have two responses,

Justice Ginsburg. First, there's a similar provision to

108.51 covering the taking or operating of an airplane.

It is in the penal code. It is 499(b). It exactly

mirrors the language of 108.51. So presumably the

Government would agree that the definition of accessory

under California law in the penal code would cover

499(b) for the same reasons it would cover under 108.51.

Moreover, accessory under California law only has one

meaning. In 1872 the California legislature passed the

provision at issue, Section 32 and said accessory is

defined to be accessory after the fact. At the same

time, the legislature passed other provisions which also

used accessory in that consistent way.

The California Supreme Court as early as

1898 stated that accessory means accessory after the

fact and relatedly, accessory before the fact, the only

33




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


other plausible meaning of the term, has no meaning

under California law.

So with all due respect to the Government,

accessory in 108.51 means accessory after the fact and

that alone makes a broad and generic definition of theft

offense.

JUSTICE ALITO: So wouldn't it odd for this

Court to decide that issue of California law?

MR. MEADE: I wouldn't think it would be

odd, Justice Alito, because it is so clear. It has to

do with a statutory term. It has to do with a statutory

term that's defined under the California statute.

Moreover, under a Taylor inquiry, Federal courts are

often required to look at state law to figure out

whether a particular provision is within or outside a

generic definition of a crime.

JUSTICE SCALIA: Of course if you're right

about this it would mean the statute is broader, but it

would still be available to find out whether your client

was in fact convicted as an accessory or as a principal.

MR. MEADE: That's correct, Your Honor.

JUSTICE SCALIA: Now is that -- is it

possible? Or is that out of the question in this case?

MR. MEADE: I'm sorry. Is what possible?

JUSTICE SCALIA: Is it possible from

34




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


pleading documents, from the charge, to determine

whether he was convicted as an accessory or not? And if

it's clear that he wasn't, then we're just wasting our

sometime in arguing this point, aren't we?

MR. MEADE: I disagree. Because as an

initial matter, this case in our view is about the

categorical approach. But as to your question about

what these documents show, no, the documents in this

case do show that he was an accessory after the fact or

a principal, but the Government has failed to meet its

burden one way or the other.

CHIEF JUSTICE ROBERTS: Well, they say you

cannot be convicted as an accessory unless you are

charged as such, and that the documents show he was

charged as a principal.

MR. MEADE: We disagree with that

characterization of the Government as we set forth in

our brief. California law does not require someone to

be charged with that specific -- level of specificity.

And that's something we set forth in our brief.

Moreover --

JUSTICE GINSBURG: Well how about how -- how

the defendant was charged in this very case?

Mr. Himelfarb thought that it was plain from that

charge, that's on 13(a), that he was charged as a

35




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


principal. And you must take the view that this charge,

this information was inadequate to identify him as

principal.

MR. MEADE: This charge is ambiguous as to

whether he was charged as a driver and taker, as the

principal, or as an accessory after the fact.

JUSTICE SCALIA: No, no, no. It says, "who

at the time and place last aforesaid did willfully and

unlawfully drive or take a vehicle." I mean, he is --

he's charged with being the person who took the vehicle,

not, not some subsequent accessory.

MR. MEADE: Well, this is a question of

California law.

JUSTICE SCALIA: It is not a question of Cal

-- it is a question of English.

MR. MEADE: No, I disagree, Your Honor. I

mean, it's a question of California law what needs to be

charged in a California charging document.

JUSTICE SCALIA: We're not saying about what

needs to be charged. We're talking about what was

charged. And it seems to me there's no question what

was charged is that he did willfully and unlawfully

drive or take a vehicle. There is no way you can

consider that an accessory.

MR. MEADE: Well, I disagree. Because under

36




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


California law you need to charge generally under the

statute, and the statute says drive or take. That's how

he was charged. Moreover, though, under California law,

the charging document does not necessarily control the

conviction.

JUSTICE SOUTER: No, but you're -- you're

saying then despite the fact that the, the indictment in

this case said he willfully et cetera did this, it would

be open to California to prove that in fact he didn't do

any of those things, but was merely an accessory after

the fact? That -- that's your position? That's what

California pleading law allows?

MR. MEADE: Yes.

JUSTICE SOUTER: Okay.

JUSTICE STEVENS? Do you have any case on

that?

MR. MEADE: Yes. People v West and People v

Toro.

JUSTICE STEVENS: Both West and Toro.

MR. MEADE: Yes. W-e-s-t, and People v

Toro. There's also the case of Sandoval which is also

cited in our brief.

JUSTICE STEVENS: Does any of those cases

squarely hold that he could be convicted of being an

accessory after the fact on a general indictment like

37




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


this?

MR. MEADE: No, none of them do. They talk

about the general principle under California law, about

that a charging document does not necessarily control

the ultimate conviction and sets forth the test that

needs to be applied. But on this question --

CHIEF JUSTICE ROBERTS: Well, the Government

-- it is not only that. The Government has authority

going the other way. People versus Prado, "in the

absence of a statute, an accessory after the fact must

be indicted and convicted as such." If you look at this

information, it's clear that he's not being indicted as

an accessory after the fact.

MR. MEADE: Well, we think People v Prado

supports our view which is a statute specifically that

allows for accessory liability on its face. So,

therefore, a person need not be charged under the

different accessory statute.

However, to the extent this Court finds the

charging documents or ultimate conviction ambiguous,

which it sounds like some members of the Court may

believe it is, this is a question of California law, as

a first point; but moreover, the question here is

whether the Government has met its burden under Taylor

and Shepard. And under Taylor and Shepard the inquiry

38




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


is whether it can necessarily be shown that someone was

convicted of a generic definition; and here, given the

ambiguity under California law, it can't be said that --

JUSTICE BREYER: But what do we do about

that? No, you have no interest in answering my

question, but the question, it seems to me under the

law, here is what I do -- and I'm a good deference

lawyer, as you are. I simply look at the statute. And

I imagine some very weird case that the statute could

cover where the person wouldn't have the right intent or

it wouldn't be theft or it would be some odd thing.

There's no possibility in the world that applied to my

client. But most charges are simply stated in the

wording of the statute. And most judgments simply say

guilty.

So I say "see, you see, it is theoretically

possible." And now when you decide what really

happened, Court, you're supposed to look only to the

charging documents in the judgment; and you can't say it

didn't. So the whole congressional scheme is basically

put to the side.

Now what's the answer to that problem,

insofar as you want to answer it?

MR. MEADE: Of course, I'd be happy to. I

don't think it puts the whole scheme aside. Remember,

39




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


the Government gets two bites at the apple here. They

get a first bite on the categoric approach where all

they need to show is that all the elements are within

the generic definition of the crime. We'd be dealing

with a different case if the person was charged under

the penal code which doesn't require -- which requires

intent to steal and which does not cover accessories

after the fact. So the Government gets a free pass on

round one.

On round two, on the modified categorical

approach as we're discussing here, the Government gets a

second chance to -- based on actual documents in the

record to establish whether there's enough there.

Here the Government relies on the charging

document in an abstractive judgment, but the Government

does not put in a plea colloquy, it does not put in plea

allocution, it does not put in any other documents that

would establish under Shepard that someone was

necessarily convicted of the crime. So what -- the

Government here is asking to be relieved of its burden

of proof which it has in this case. I would like to

note that on the --

JUSTICE SCALIA: But the charging document

you acknowledge would suffice if it indeed is California

law that in order to convict as an accessory you have to

40




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


charge as an accessory? You would acknowledge this?

MR. MEADE: Yes. I would acknowledge the

charging document unto itself, but not taking into

account the fact that the charging document and the

conviction not match.

I would note, though, that the Court need

not go to the modified categorical approach, and I would

say should not. This is something that the board -- the

agency has been able to deal with for 60 years or so,

dealing with the actual documents, trying to figure out

a whether particular charging document is or is not

enough. In Shepard itself, which actually dealt with

the question of which documents could or could not be

considered, the Court did not go further and look at the

next step and decide whether those particular documents

did or did not meet the definition in that case.

I'd also like to note to the extent that

this Court finds California charging law ambiguous or

hard to understand, under the principle of Jett v Dallas

Independent School District, the circuit courts are in a

better position to consider a matter of California State

law in the first instance.

So our accessory argument is that the Court

should decide the categorical approach alone on the

accessory after the fact ground and remand to the agency

41




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


for consideration under the modified approach.

I'd like to also stress that if the Court

were to affirm on that ground it would be a very narrow

holding. There's only two other statutes in California

that expressly include accessories after the fact.

California's car theft statute does not include

accessories after the fact.

JUSTICE ALITO: In order to agree with you

on the accessory point, though, don't we have to decide

two disputed issues of California law? Whether

accessory here in this statute means accessory after the

fact, and whether if somebody is charged under that

statute as an accessory, that has to be alleged

specifically in the indictment, or whether it is just

sufficient to charge the person with the offense.

MR. MEADE: The Court would only need to

decide that first question, not the second question.

The first question is what is the meaning of accessory

under California law. That is sufficiently clear in our

view that the Court need not send it back to the Court

of Appeals. The second question under the modified

approach is outside the core of what this case is about,

and we suggest that that should be remanded to the Ninth

Circuit or the agency.

CHIEF JUSTICE ROBERTS: Has anyone ever been

42




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


prosecuted as an accessory after the fact to joyriding?

MR. MEADE: I do not know one way or the

other, Your Honor. But I also note that we don't know

whether anyone has been prosecuted under 108.51 on that

ground, we also do not know whether someone has been

prosecuted under Section 32, which is the accessory

after the fact provision, or more generally on that

ground.

CHIEF JUSTICE ROBERTS: But if no one has

ever been prosecuted as an accessory after the fact for

joyriding, we'd really have to go out on a limb to

construe this charging document which charges him as a

principal as actually meaning to charge him as an

accessory after the fact, wouldn't we?

MR. MEADE: Not necessarily, because what we

have is a statutory provision that clearly covers

accessories after the fact. We do not have an example

of someone who was charged under 108.51, but there are

many reasons why that may not show up, partly because

the charging documents don't need to so provide, in our

view. So figuring out who was and who was not an

accessory after the fact or a principal under 108.51 is

not so easy to distill.

JUSTICE BREYER: Have you been able to think

of any examples where a person could have been,

43




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


convicted of this statute, under the statute would he

actually have been some kind of accessory to another

person committing another crime, and the natural and

probable consequence was that that other person would

violate this statute?

MR. MEADE: So --

JUSTICE BREYER: Have you been able to think

of one?

MR. MEADE: Sure. So you're switching to

the natural and probable consequences?

JUSTICE BREYER: Yes, I am.

MR. MEADE: Yes, and I thank you for that

question. Someone who, say, could aid and abet, or have

the intent to aid and abet purchasing alcohol for a

minor, a natural and probable consequence of that could

be joyriding.

I would also like to -- turning to the

question of the natural and probable consequences

doctrine, the government is incorrect when it states

that the majority view accepts the natural and probable

consequences.

JUSTICE ALITO: Are there cases that hold

that the natural and probably consequences of purchasing

alcohol for a minor could be joyriding?

MR. MEADE: We have not found a case on

44




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


that. However --

JUSTICE ALITO: Or anything else that

somebody might do after getting intoxicated?

JUSTICE SCALIA: Partying maybe I would

understand. I don't know about joyriding.

MR. MEADE: The natural and probable

consequences theory cuts across a wide variety of

crimes, as the government points out. So it would also

cover the different provisions under the INA such as

burglary, theft, and other provisions as well. The

government, though, is incorrect in stating that the

natural and probable consequences is a majority view.

Even in its brief, the government only sets forth 22

states that it says apply that analysis.

Those 22 states that the government cites,

many of them do not support the proposition that it is a

majority view or even applied in those states. For

example, just to give a couple of examples, the

government cites Missouri as a state that applies the

natural and probable consequences doctrine. However in

Missouri, in the very case cited by the government,

People v. Evans, the court rejects the use of the

natural and probable consequences doctrine and says,

"The use of the natural and probable consequences

doctrine was error as a matter of law."

45




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


The same is true -- and that's on the same

page the government cites. The same is true with

respect to Maryland, where the same footnote that the

government cites rejects the natural and probable

consequences doctrine in favor of a narrower theory.

It's also true in Idaho, Louisiana, Georgia and Texas,

also do not apply the natural and probable consequences

doctrine.

So what, the government here is seeking to

hold someone guilty of a theft offense as an aggravated

felony without the requisite mens rea, and something

that's a minority view of the states.

Just to put this into context, under the

natural and probable consequences doctrine, it's as if

California passed a statute saying that in some cases

someone can be guilty of burglary without the mens rea

of burglary, or saying that one can be guilty of theft

without the mens rea of theft.

CHIEF JUSTICE ROBERTS: Your argument isn't

limited to theft offenses, correct? That would cut

across all of these areas in which the federal law

refers, in which a Taylor analysis would apply?

MR. MEADE: Yes, it would. So it would not

necessarily apply to the non-Taylor provisions such as

the one --

46




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


CHIEF JUSTICE ROBERTS: It would mean we

could not rely on the categorical approach in almost any

of those cases?

MR. MEADE: As -- on the first step, yes.

CHIEF JUSTICE ROBERTS: Yeah, the

categorical approach.

MR. MEADE: It does mean that, Your Honor.

JUSTICE BREYER: Well then, what's an

example of where you're held guilty on the ground that

you aided and abetted natural and probable -- somebody

did X and the natural and probable consequence was

Y. Because after all, you are properly held guilty when

you do an act and a known consequence is Y. So what's an

example of that?

MR. MEADE: Sure. I'd be happy to give a

number of examples.

JUSTICE BREYER: One would be good enough.

The best one.

MR. MEADE: If you intend to aid and abet

robbery, you intend to aid and abet robbery, you can be

held liable for an unintended rape of another. If you

aid and abet --

JUSTICE BREYER: That's a known and probable

consequence? That's a probable consequence?

MR. MEADE: Yes.

47




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


JUSTICE BREYER: Well then, maybe the

problem is that they don't define natural and probable

consequence properly.

MR. MEADE: Well, this is how it's applied

under California law. To give another example --

JUSTICE SCALIA: Wait a minute. That's a

real case?

MR. MEADE: That's a real case, and I'll

give you the cite. People v. Banks, 2002 Westlaw 192,

720. There's another case cited in our brief, aid and

abet robbery, natural probable consequence, sex

offenses, that's the People v. Nguyen case. Another

example, a person who has the intention to aid and abet

battery, beating someone up, can be held guilty for an

unintended robbery.

And to show how stark this is, this is in

California, it's broader than even the common law.

JUSTICE SCALIA: It sounds like the doctrine

of unnatural improbable consequences.

(Laughter.)

JUSTICE BREYER: You're asking us to say

that not only do the states have to have the same rule,

but they have to interpret the rule the same way. This

would make the application of the categorical approach

impossible. You'd have to look not only to the

48




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


expression of the rule of law by the state courts, but

to its application by the state courts in every

jurisdiction. I mean, that just makes the whole

enterprise infeasible, it seems to me.

MR. MEADE: What the Taylor analysis looks

to is what's in the heartland of a certain crime, and

here what's in the heartland of aiding and abetting.

And what we have here is an aberrant doctrine of

California law that is outside the mainstream.

JUSTICE SCALIA: Let me tell you, what's

aberrant is the California interpretation of the

standard doctrine that is used in many states, which is

you intend the natural and probable consequences of what

you do. And if California has, some California courts

have come up with weird notions of that, I don't know

that that destroys the uniformity among the states.

MR. MEADE: Just to briefly respond?

CHIEF JUSTICE ROBERTS: Yes, sir.

MR. MEADE: The rule that you state is that

one intends the natural and probable consequences of

one's own acts. We do not dispute this rule. The

question is as applied to aiding and abetting liability,

and California is one of a handful of states that

applies the natural and probable consequences doctrine

to aiding and abetting liability, which has the novel

49




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


and aberrant consequences of holding people liable even

if they don't have the requisite mens rea for the

offense.


Mr. Meade.

Mr. Himelfarb, you have four minutes

remaining.

REBUTTAL ARGUMENT OF DAN HIMMELFARB

ON BEHALF OF PETITIONER

JUSTICE KENNEDY: Would it be completely

inconsistent with Taylor versus United States for us to

say that when there is a novel or an unusual theory of

potential liability such as proposed by the respondent,

which would exonerate him from application of this

statute, that he has the burden to show that that's what

happened?

MR. HIMMELFARB: Well, we think --

JUSTICE KENNEDY: Would Taylor allow us to

do that sort of burden shifting?

MR. HIMMELFARB: Well ultimately,

Justice Kennedy, we don't think that Taylor controls on

the question of what Congress's intent was under the

INA. Ultimately Taylor was a question about Congress's

intent in enacting the Armed Career Criminal Act, and

every aspect of that decision was tied in some way to

50




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Congress's intent there.

We think Congress's intent in enacting the

aggravated felony provision of the INA has to be that it

didn't intend that you would have these highly arcane

comparisons of some general definition of aiding and

abetting, which either would or wouldn't include the

infinite variety of formulations of aiding and abetting.

JUSTICE KENNEDY: And so your general rule

to accomplish your objective would be?

MR. HIMMELFARB: It's the one I suggested

when I was up here earlier, which is a holding by this

Court that Congress intended to include aiding and

abetting liability in the aggravated felony provision,

and intended to cover whatever formulations were extant

in 1988 when the provision was enacted. The Court can

leave open the possibility that if in some future case,

some jurisdiction were to enact an extraordinarily far

reaching theretofore unheard of formulation, for

example, anybody who intentionally insists -- assists --

without regard to whether the person even knew about the

principles of criminal conduct, could be held liable as

an aider and abettor. In that circumstance, it might

well be the case that a state, by adopting such a far

reaching theory of aiding and abetting, would in effect

forfeit the right to have any of the subsequent

51




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


provisions in its criminal code treated as aggravated

felonies unless the government in the immigration case

could somehow prove that the alien wasn't convicted as

an aider and abettor.

JUSTICE SOUTER: I think that, the problem I

guess that I have with your argument, is that the theory

of Taylor and as carried forward in Shepard was that

there was a concept of a generic offense. And when

aiding and abetting liability is extended in the natural

and probable consequences theory, we face the fact that

regardless of what the actual count is, even on your

count, there isn't even a majority of states that do it.

And I have difficulty seeing how that can, therefore,

form an element of a generic offense when it is -- or a

generic concept of the offense -- when it is a minority

view.

MR. HIMMELFARB: Well, even under our

fallback position, Justice Souter, under which you would

have to come up with some general definition of aiding

and abetting and then make a comparison with the law of

aiding and abetting in the jurisdiction of conviction.

And even if it's, you know, 20-20 or 18-18 among the

states on this particular wrinkle in the law of aiding

and abetting, we think it is frankly dispositive in this

case, that it is the Federal rule, and my friend

52




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Mr. Meade has not disputed that.

We think it's just inconceivable that

Congress would have intended that in a Federal criminal

case if you're charged with murder, you can be convicted

under a natural and probable consequences theory such

that you could conceivably spend life in prison the same

way a principal would, and yet you would not be subject

to the same immigration consequences as somebody

convicted of the principal offense of murder, and

indeed, that you wouldn't even be able -- the government

wouldn't be able to --

JUSTICE SOUTER: Why didn't we simply take

the closest Federal definition as being the touchstone?

MR. HIMMELFARB: Well, I -- in Taylor?

JUSTICE SOUTER: Yes.

MR. HIMMELFARB: I think that one of the

problems in Taylor was that there really is no Federal

definition of burglary. That's part of it. The other

part of it is to some extent, the Court did rely on the

Federal definition in Taylor. The original version, the

original version of the office statute defined burglary,

and it defined it in a generic way which was broader

than the common law rule.

JUSTICE SOUTER: Was Taylor an immigration

case?

53




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


MR. HIMMELFARB: No, it wasn't. It was a

criminal case.

JUSTICE SOUTER: So you are in effect, you

would say that the rule should be, or the modified

Taylor rule for application here should be that it's

either got to fall within the concept of the Federal

offense, or in default of there being a comparable

Federal offense, a generic offense defined by reference

to state practice?

MR. HIMMELFARB: May I answer the question?

CHIEF JUSTICE ROBERTS: Certainly.

MR. HIMMELFARB: Our primary submission is

that in the context of aiding and abetting, there

shouldn't be any generic definition beyond what the

states apply, whatever the formulation. Our fallback

position is essentially what you just described, and we

think we should prevail under it because we think we

have the Federal rule. We think we have the majority

rule in the states. And we have the common law rule as

well.


Mr. Himmelfarb. The case is submitted.

(Whereupon, at 11:08 a.m., the case in the

above-entitled matter was submitted.)

54





Page 55

A abandon 31:5abandoned 31:4aberrant 49:8

49:11 50:1abet 5:5 6:22

44:13,14 47:1947:20,22 48:1148:13

abetted 5:1547:10

abetters 4:6abetting 3:13,16

3:19,22 4:227:24,25 8:6,78:11,12 9:10

11:7,10,14,2112:13,19,2013:2,5,10,1113:16 16:7,1017:9,18,2518:1,5,15 19:419:7,8,24 20:120:10,12,17,2224:21 25:9,1525:20 32:1349:7,22,25

51:6,7,13,2452:9,20,21,2454:13

abettor 4:9 5:5,95:18 6:14 11:615:9,11 17:1419:11,15,17,2151:22 52:4

abettors 20:525:4

able 18:20,2419:5,16 41:943:24 44:753:10,11

above-entitled 1:12 54:24

absence 38:10Absolutely 32:8abstract 25:7abstractive

40:15academic 16:22accept 15:17accepts 44:20accessories 24:9

32:21 40:742:5,7 43:17

accessory 13:2514:4,14,16,1614:17,22 15:1315:16 16:132:20,22,2533:1,14,17,1933:20,22,24,2433:25 34:4,434:20 35:2,9

35:13 36:6,1136:24 37:10,2538:10,13,16,1840:25 41:1,2341:25 42:9,1142:11,13,1843:1,6,10,1443:22 44:2

accomplice 14:14

accomplish 51:9account 17:8

41:4acknowledge

40:24 41:1,2acknowledged

14:7act 3:13 8:14

47:13 50:24acts 49:21actual 12:8

40:12 41:1052:11

add 9:2added 8:13additional 9:24address 10:11

12:24 15:2532:19

admissible 19:20

admitted 26:4adopted 13:16adopting 51:23affirm 42:3affirmance 33:4

aforesaid 36:8agency 8:25

9:17 41:9,2542:24

aggravated 3:124:3 7:23 8:111:10 13:2017:12 20:4,1320:18 22:2523:3,5,1224:14 32:5

46:10 51:3,1352:1

agree 25:9 33:1442:8

agrees 7:4ahead 12:4aid 5:5 6:22

44:13,14 47:1947:20,22 48:1048:13

aided 5:15 47:10aider 4:8 5:5,9

5:18 6:14 11:615:8,11 17:1419:10,15,17,2151:22 52:4

aiders 4:6 20:425:4

aiding 3:13,163:19,22 4:217:11,24,25 8:68:6,10,12 9:1011:1,7,10,13

11:16,21 12:1312:19,20 13:213:4,10,11,1616:6,10 17:917:17,25 18:118:5,15 19:4,619:8,24,2520:9,11,14,17

20:22 24:2125:9,15,2032:13 49:7,2249:25 51:5,751:12,24 52:9

52:19,21,2354:13

airplane 33:11ALBERTO 1:3alcohol 44:14,24ALEXANDER

1:7ALI 16:18alien 4:7 11:20

18:20 52:3aliens 4:3 17:11

Alito 13:8,1234:7,10 42:844:22 45:2

alleged 42:13allocution 40:17allow 50:18allows 37:12

38:16alternate 33:3altogether 33:7ambiguity 39:3ambiguous 36:4

38:20 41:18amount 28:17

28:21,22,25analysis 17:21

18:24 45:1446:22 49:5

answer 15:1726:6 39:22,2354:10

answered 6:8answering 39:5

anybody 6:2251:19

anyway 7:926:13

apparently 29:12 31:16

appeals 9:1317:20 22:17

42:21APPEARAN...

1:15appendix 15:2apple 40:1

application 48:24 49:250:14 54:5

applied 16:2121:8 29:1738:6 39:1245:17 48:449:22

applies 20:1145:19 49:24

apply 12:6 13:25

19:4 20:945:14 46:7,2246:24 54:15

approach 19:435:7 40:2,1141:7,24 42:142:22 47:2,648:24

appropriate 13:13 31:24

arcane 51:4areas 46:21argue 9:14

16:10 32:14arguing 7:3

11:20 35:4argument 1:13

2:2,5,8 3:3,73:16 7:1211:11 12:6,2013:6 14:1,715:22 23:2324:20 41:23

46:19 50:852:6

arguments 10:16 15:21

arises 5:9Armed 50:24articulate 12:25aside 39:25





Page 56

asking 40:2048:21

aspect 11:1350:25

aspirational 30:13

assault 4:18,204:23 5:14 6:4

assert 30:21,21asserted 14:8assist 5:10Assistant 1:16assists 51:19assume 14:20Assuming 8:22attempting

12:25ATTORNEY

1:4authority 38:8automatic 24:15available 32:14

34:19aware 19:14

21:7a.m 1:14 3:2

54:23

B back 9:12 12:4

30:20 31:1142:20

bad 16:18Banks 48:9bar 24:16based 4:4 40:12basic 6:25 11:16

14:11basically 39:20

basis 12:9battery 48:14bears 7:22beating 48:14Beeman 25:16began 24:19behalf 1:18,19

2:4,7,10 3:8

23:24 50:9believe 26:10

38:22benefits 27:4best 47:18

better 15:2516:2 41:21

betting 7:1211:1,17 20:14

beyond 7:554:14

bite 40:2bites 40:1block 31:11board 9:13

17:19 22:17

41:8book 29:18,19

29:21bore 5:21BREYER 26:25

27:7,10,13,2328:5 29:5,1029:18 39:443:24 44:7,1147:8,17,2348:1,21

brief 4:13 10:1214:11 16:1026:19 27:20,2130:18 35:18,2037:22 45:1348:10

briefly 49:17brings 31:11broad 16:4

25:14,20 34:5broader 10:15

11:22 13:2,3

14:19 18:2420:11,17 21:2024:11 33:234:18 48:1753:22

burden 31:2535:11 38:2440:20 50:15,19

burglary 18:1825:25 45:1046:16,17 53:1853:21

C C 2:1 3:1Cal 36:14California 3:17

3:19,21 10:1510:24 14:13,1915:9,12,1818:3,4 20:2521:6,19 22:1223:6,9 25:9,1825:21 31:21

32:20,24 33:1533:17,18,2334:2,8,1235:18 36:13,1736:18 37:1,3,937:12 38:3,2239:3 40:2441:18,21 42:442:10,19 46:1548:5,17 49:949:11,14,14,23

California's 24:4,6 25:1542:6

call 16:6called 5:6 21:1capture 21:22captures 20:4car 21:2,10,18

21:18,24 22:124:4 26:1629:13,19 31:331:5,10,10,20

31:23,25 42:6care 9:7Career 50:24carried 52:7carry 33:8cars 21:6case 3:4 4:8,19

4:24 5:4,7,12

8:8 9:4,7,1211:19,20 13:716:14 17:1819:19 24:325:8,13,16

26:15 27:2231:7,9 33:434:23 35:6,935:23 37:8,1537:21 39:940:5,21 41:1642:22 44:2545:21 48:7,848:10,12 51:1651:23 52:2,2553:4,25 54:2

54:22,23cases 16:21

17:15 18:19,2419:16,18 23:431:23 37:2344:22 46:1547:3

categoric 40:2categorical 12:7

25:5 35:740:10 41:7,2447:2,6 48:24

certain 3:2130:9 49:6

certainly 8:189:25 16:1318:12 54:11

certiorari 12:15cetera 37:8chance 40:12characterizati...

35:17characterized

13:3charge 4:20,23

5:15,16 6:315:2 21:331:24,24 35:135:25 36:1,437:1 41:142:15 43:13

charged 6:2,66:11,13,1514:23,24 15:1015:12,15 19:119:14 26:16,17

35:14,15,19,2335:25 36:5,1036:18,20,21,2237:3 38:1740:5 42:1243:18 53:4

charges 39:1343:12

charging 12:915:14 18:2519:12 36:18

37:4 38:4,2039:19 40:14,2341:3,4,11,1843:12,20

Chief 3:3,910:13,20 12:312:11 23:20,2524:19,25 30:430:11 31:1,1332:6,12,1635:12 38:742:25 43:946:19 47:1,549:18 50:454:11,21

CHRISTOPH... 1:19 2:6 23:23

circuit 3:11,207:5,10,20 8:178:22,23,24,259:4,5,9,1710:14,22,2412:12,22 24:21

24:24 25:2,1225:14,19 26:2527:17,18,2232:7,9,10,1032:17 41:2042:24

Circuit's 3:254:1 7:25 10:19





Page 57

10:21 12:10,18circumstance

51:22circumstances

21:9

cite 48:9cited 25:15

29:15 37:2245:21 48:10

cites 27:22 45:1545:19 46:2,4

claim 9:18clear 11:9 14:24

33:7 34:1035:3 38:1242:19

clearly 3:1410:24 11:2443:16

client 25:2434:19 39:13

closer 30:12closest 53:13code 16:18

20:12,15 21:121:1,4,4 24:5,728:14 30:2,5,630:8,10,12,1633:6,8,8,12,1540:6 52:1

colloquially 22:4 23:4

colloquy 40:16come 4:14 49:15

52:19comes 29:11comments 13:25commit 5:7committing 44:3

common 21:1528:4,6,7 29:2248:17 53:2354:19

comparable 54:7

compare 17:24compared 8:8

comparison 18:13 52:20

comparisons 51:5

completely 50:10

complex 17:23complicate

17:15concede 25:3concedes 24:10

32:22conceivably

13:6 53:6concept 28:25

52:8,15 54:6

concerned 18:14conduct 19:2

24:8 31:2051:21

Congress 8:913:19 16:2451:12 53:3

congressional 20:7 39:20

Congress's 20:350:22,23 51:151:2

consensus 28:12consent 27:3consequence

5:24 17:1044:4,15 47:1147:13,24,2448:3,11

consequences 3:23 4:11,174:21 5:14,206:17,19 17:4

24:15 25:1732:5 44:10,1844:21,23 45:745:12,20,23,2446:5,7,1448:19 49:13,2049:24 50:152:10 53:5,8

consequent 6:15consequential

6:1,2 16:9consider 7:2

36:24 41:21

consideration 42:1

considered 10:19 41:14

consistent 30:1630:22 33:22

constitute 28:19constitutes 18:6construe 43:12contemplate

18:19

contest 26:20context 24:17

46:13 54:13contrary 7:24control 27:2

37:4 38:4controlled 9:5controls 50:21convict 6:3

40:25convicted 4:8

6:1 11:5,22,2412:8 15:8,1115:13 16:2517:13 18:2119:6,10,15,1719:21 20:2122:23 25:2526:1 31:1734:20 35:2,1337:24 38:1139:2 40:1944:1 52:3 53:4

53:9conviction 4:4

4:10 8:7 10:2511:4 17:22,2518:23 23:1124:4,6,1226:17 37:538:5,20 41:5

52:21convictions 26:8core 42:22Corona-Sanc...

27:18

correct 5:1624:22 25:3,2434:21 46:20

correctly 9:21Counsel 12:3count 28:16

52:11,12couple 28:9

45:18course 5:18 6:15

10:2,2,5 15:25

16:3 34:1739:24

court 1:1,133:10 7:24 8:211:9 12:14,2312:24 13:1314:10,20 15:2417:20 18:11,2024:1 30:833:23 34:838:19,21 39:1841:6,14,18,2342:2,16,20,2045:22 51:12,1553:19

courts 8:3 16:2117:7 34:1341:20 49:1,249:14

Court's 10:9,10cover 8:10 22:3

22:4,12 33:1533:16 39:10

40:7 45:951:14

covered 19:231:6,12

covering 13:2033:11

covers 3:19,2121:6 22:2 24:7

26:18 31:2232:21 43:16

crime 5:6,8,8,105:11,19,21,225:23,24 6:1,2,6

6:12,13,14,156:18,22,23,2414:5 20:1223:14 25:1030:9 32:134:16 40:4,1944:3 49:6

crimes 45:8criminal 16:21

17:1,2 19:1920:12,15,16,20

50:24 51:2152:1 53:3 54:2

criminalized 31:20

critical 22:14criticism 16:20

16:22criticized 16:17criticizing 17:5curious 20:24

25:23currently 13:17cut 46:20cuts 45:7

D D 3:1Dallas 41:19DAN 1:16 2:3,9

3:7 50:8Davis 31:8day 28:2days 28:10

deal 41:9dealing 32:1

40:4 41:10deals 31:23dealt 41:12death 30:23,25December 1:10decide 16:3,4,8





Page 58

26:4 32:1434:8 39:1741:15,24 42:942:17

decided 8:16

13:22 32:12deciding 7:6decision 9:5,12

10:19,23 12:1024:20 50:25

decisions 16:23default 54:7defend 3:15 14:8

24:20,23defendant 5:15

12:7 19:20

20:21 35:23defense 9:15

12:17deference 39:7define 48:2defined 27:1

33:20 34:1253:21,22 54:8

definition 8:510:14,16 11:611:11 12:1,714:18 17:2218:17,21 19:720:1 22:1624:11 25:1026:21,24 27:1927:25 29:1730:9 32:2433:2,6,7,1434:5,16 39:240:4 41:1651:5 52:1953:13,18,20

54:14denying 29:22Department

1:17depend 6:19deportation

24:15deprivation

27:15deprive 21:18

21:24,25 22:622:18 23:1027:3 28:18

29:7describe 30:11described 54:16despite 37:7destroys 49:16determine 35:1difference 18:13

21:2differences 16:5

18:16different 11:15

12:21 13:1030:1 31:2238:18 40:545:9

differently 21:17

difficulty 17:1252:13

disabling 9:22disagree 26:14

35:5,16 36:1636:25

discretion 10:910:10

discussed 7:1910:17

discussing 40:11discussion 29:25dispose 7:8disposed 7:9dispositive

52:24dispute 49:21

disputed 42:1053:1

disregarded 18:8

distill 43:23distinction

19:22distinguishes

4:5District 41:20divorced 25:8,8doctrine 25:17

44:19 45:20,23

45:25 46:5,846:14 48:1849:8,12,24

document 36:1837:4 38:440:15,23 41:341:4,11 43:12

documents 12:935:1,8,8,1438:20 39:1940:12,17 41:10

41:13,15 43:20drastically 4:2

17:11drive 36:9,23

37:2driver 36:5drives 31:10driving 14:14

21:22due 34:3Duenas-Alvarez

1:7 3:5D.C 1:9,17

E E 2:1 3:1,1earlier 51:11early 33:23easily 15:24easy 43:23economic 28:19effect 4:9 20:10

51:24 54:3

either 9:1612:10 19:1325:13 28:1651:6 54:6

element 22:2052:14

elements 6:1811:25 40:3

else's 28:1,8enact 51:17enacted 13:19

30:6 51:15enacting 20:3

50:24 51:2encompasses

7:23 21:15engage 17:20English 36:15enhancement

24:17enormously

17:15enterprise 17:23

49:4

entire 8:10entirely 13:9,15

15:23entirety 20:14error 45:25ESQ 1:16,19 2:3

2:6,9essentially 15:22

21:14 54:16establish 19:16

40:13,18establishing

17:13et 37:8Evans 45:22exact 29:3 31:8exactly 33:12example 5:13

11:24 43:1745:18 47:9,1448:5,13 51:19

examples 43:2545:18 47:16

Excuse 28:23exercise 10:10exercising 27:2exhausted 9:18existence 30:13exonerate 50:14explain 19:20expression 49:1

expressly 24:932:21 42:5

extant 51:14extended 52:9extends 25:4

extension 4:21extent 38:19

41:17 53:19extraordinarily

51:17extremely 24:14

25:14

F face 38:16 52:10fact 6:12 13:25

14:4,16,17,2215:14,16 16:120:21 22:1024:10 32:2333:1,20,25,2534:4,20 35:936:6 37:7,9,1137:25 38:10,1340:8 41:4,2542:5,7,12 43:143:7,10,14,1743:22 52:10

facts 25:8,24factual 25:22failed 35:10fair 9:14fairly 7:12,15,16

7:17 8:23,249:21 12:2314:3,6

fall 23:4 54:6fallback 16:13

52:18 54:15

far 19:14 51:1751:23

far-reaching 13:15

fashion 19:20favor 46:5federal 8:5 12:1

16:21 17:1,3,7





Page 59

17:22 18:1,2119:7 22:1634:13 46:2152:25 53:3,1353:17,20 54:6

54:8,18fell 22:5felon 23:3 26:1felonies 52:2felons 4:4 17:12felony 3:12 7:23

8:1 11:1013:20 20:4,1320:19 23:1,523:12 24:1432:5 46:11

51:3,13field 13:21figure 34:14

41:10figuring 43:21files 19:19 20:20find 20:20 34:19finds 38:19

41:18firearm 26:1first 3:4 7:6 9:1

12:20 18:1019:22 22:1633:10 38:2340:2 41:2242:17,18 47:4

focused 25:1footnote 27:21

46:3foreseeable 5:23forfeit 51:25form 52:14former 18:2

formulation 8:11 11:2317:9 20:551:18 54:15

formulations 11:16 51:7,14

forth 30:3,1735:17,20 38:5

45:13forward 52:7found 17:12

44:25four 50:6

framework 18:18

frankly 52:24free 40:8friend 24:19

52:25fundamentally

13:9further 5:13

41:14future 13:15,22

51:16

G G 3:1general 1:4,17

8:5 9:10 13:416:6,9 18:3,718:16 21:825:7 30:1437:25 38:351:5,8 52:19

generally 37:1

43:7generic 10:15

24:11 25:1026:21,24 27:128:7,11 29:1630:9 32:2333:2 34:5,1639:2 40:4 52:852:14,15 53:2254:8,14

Georgia 46:6

getting 45:3Ginsburg 7:1,19

7:22 9:3 14:2515:4 16:16,2020:23 21:7,1122:2,8 23:624:3 33:5,1035:22

give 30:20 45:1847:15 48:5,9

given 23:13,1523:17 39:2

giving 20:6

go 5:7 7:5 17:2441:7,14 43:11

goes 29:2going 38:9Gonzales 1:3 3:4good 39:7 47:17government 7:2

7:8 9:14 14:2120:19 24:1026:20,23 32:2233:5,14 34:3

35:10,17 38:738:8,24 40:1,840:11,14,15,2044:19 45:8,1145:13,15,19,2146:2,4,9 52:253:10

Government's 25:23 26:19,2227:21

grand 21:7granted 12:14great 11:15

18:19 22:19ground 12:18,20

16:4,8,11,1316:15 33:1,341:25 42:343:5,8 47:9

grounds 10:412:6,16 17:525:1

guess 4:15 29:13

52:6guidance 8:3guilty 5:19

39:15 46:10,1646:17 47:9,1248:14

H

hand 18:14,15handful 49:23happen 26:3,8

31:4,6happened 6:20

39:18 50:16happens 19:18happy 27:9

39:24 47:15hard 41:19hear 3:3heartland 49:6,7held 3:11,20

5:10 9:1210:14,24 27:1847:9,12,21

48:14 51:21help 4:12highly 51:4Himelfarb 3:6

9:19 35:2450:6

Himmelfarb 1:16 2:3,9 3:73:9 4:25 5:4,176:5,10,25 7:17:11,21 8:188:21 9:8 10:2,510:8,20 12:1113:12,24 14:214:9 15:4,2016:12,19 18:920:2,23 21:521:13 22:3,923:8,15,18,2150:8,17,2051:10 52:1753:14,16 54:154:10,12,22

hold 30:18 37:2444:22 46:10

holding 3:14 4:27:25 42:4 50:151:11

holds 7:24 33:6Honor 34:21

36:16 43:3

47:7hour 28:1hours 28:9,10

I Idaho 46:6identify 36:2illegal 24:18imagine 11:19

39:9immigration

3:12 8:5,139:13 12:2 17:317:4,19,2022:17 52:253:8,24

important 8:211:8,12 18:12

18:16 19:2220:8 22:15,20

importantly 17:6

impossible 19:948:25

improbable 48:19

INA 3:18 11:723:1 26:11

45:9 50:2351:3

inadequate 36:2include 3:13

11:7 42:5,651:6,12

included 7:13,157:17 8:1 9:119:21 11:1012:23 14:3,714:17 22:14

includes 19:827:20

including 24:825:11

inconceivable 16:24 53:2

inconsistent 27:11,14 50:11





Page 60

incorrect 3:143:15 44:1945:11

Independent 41:20

indicted 38:1138:12

indictment 37:737:25 42:14

infeasible 49:4infinite 51:7information

36:2 38:12initial 5:24 6:12

6:13 35:6inquiry 34:13

38:25insists 51:19insofar 11:2

18:13 39:23instance 9:1

41:22instrument

15:15 18:2519:13

insubstantial 15:23

intend 5:5 47:1947:20 49:1351:4

intended 5:96:22,23 8:1016:24 51:12,1453:3

intends 49:20intent 5:22 20:3

20:7 21:16,1721:21,23,2522:6,18 23:10

24:5,8 26:1627:3,20 29:2530:17,19,2032:3 39:1040:7 44:1450:22,24 51:151:2

intention 48:13

intentionally 51:19

interest 39:5interpret 48:23interpretation

49:11interpreted

22:17intoxicated 45:3involve 24:3involves 24:6

31:8issue 5:8 7:16

9:9 10:11,1212:13 14:10,2216:1 21:19

30:22,25 33:1934:8

issues 7:9,149:20,24,2510:7 42:10

J J 1:19 2:6 23:23Jett 41:19 joy 31:2,6,13,16 joyride 27:24 joyrider 26:13 joyriding 22:2,4

22:7,13 23:4,723:8 26:18,2026:23 27:1931:2,12,2243:1,11 44:1644:24 45:5

judge 17:19 judgment 9:16

10:4 12:1714:8 24:23,25

39:19 40:15 judgments

39:14 jurisdiction 4:5

4:5,10,14 8:78:12 11:18,1811:22,25 13:113:9,18,22

20:11 49:351:17 52:21

jurisdictions 11:19 17:1020:18

Justice 1:17 3:33:9 4:12 5:2,125:25 6:5,7,9,217:1,19,22 8:158:19 9:3,1910:3,6,13,2012:3,12 13:813:12,24 14:614:25 15:4,1716:2,16,2018:2 19:23

20:23 21:7,1122:2,8 23:6,1323:15,17,20,2524:3,19,2525:22 26:13,2527:7,10,13,2328:5,20,2429:3,5,10,1830:4,11,2131:1,13,1632:6,12,1633:5,10 34:734:10,17,22,2535:12,22 36:736:14,19 37:637:14,15,19,2338:7 39:440:23 42:8,2543:9,24 44:744:11,22 45:245:4 46:1947:1,5,8,17,2348:1,6,18,21

49:10,18 50:450:10,18,2151:8 52:5,1853:12,15,2454:3,11,21

K keep 11:12

22:14Kennedy 50:10

50:18,21 51:8kind 3:21 13:6

16:8 44:2

knew 51:20know 4:13 10:18

13:22 14:2515:1 21:224:25 26:6,1529:11,23 43:243:3,5 45:549:15 52:22

known 22:4 23:447:13,23

L labeled 13:11language 15:5,7

15:14 33:13larceny 21:15,15

31:7,9lasts 29:12Laughter 31:15

31:18 48:20law 8:5,6 11:14

11:21 13:1,1714:24 15:9,11

15:19 16:6,917:1,3,5,7,2518:1 19:1321:15 25:9,1825:21 28:4,6,729:22 30:14,1832:20,24 33:1533:17 34:2,834:14 35:1836:13,17 37:137:3,12 38:3

38:22 39:3,740:25 41:18,2242:10,19 45:2546:21 48:5,1749:1,9 52:2052:23 53:2354:19

lawful 26:2,4,9

26:11lawyer 39:8lead 32:4leads 6:23leave 8:1,4

13:14 51:16LeFave 28:13

29:25legislature

33:18,21let's 4:17level 35:19liability 11:1

16:9 20:1524:8 25:10,1525:20 32:20

38:16 49:22,2550:13 51:1352:9

liable 5:10 13:2347:21 50:151:21

life 53:6limb 43:11limit 4:2 19:23limitation 22:21limitations

22:15limited 11:13

46:20limiting 17:11lines 14:10literature 16:23long 28:4 29:6look 15:18 18:25

19:5,12 29:2129:23 34:1438:11 39:8,1841:14 48:25

looking 12:815:1 18:22

looks 49:5Louisiana 46:6lower 8:3LUIS 1:7

M





Page 61

main 12:12mainstream

49:9majority 23:3

28:12,15 30:16

30:22 44:2045:12,17 52:1254:18

Maryland 46:3match 12:1 41:5matches 17:22

18:23 19:7matter 1:12 6:14

7:6 9:10 10:816:7 20:6,725:7 35:6

41:21 45:2554:24

Meade 1:19 2:623:22,23,2524:23 25:726:6,14 27:6,927:12,14 28:328:11,23 29:229:8,16,2430:7,15,2431:5,19 32:832:15,18 33:533:9 34:9,2134:24 35:5,1636:4,12,16,2537:13,17,2038:2,14 39:2441:2 42:1643:2,15 44:6,944:12,25 45:646:23 47:4,747:15,19,2548:4,8 49:5,17

49:19 50:553:1

mean 6:10 20:220:16 22:1327:24 29:234:18 36:9,1747:1,7 49:3

meaning 32:25

32:25 33:1834:1,1 42:1843:13

means 7:23 8:411:9 14:16

32:22 33:2434:4 42:11

meant 6:11mechanical 4:13meet 31:25

35:10 41:16members 38:21mens 30:3,19

32:3 46:11,1646:18 50:2

mentioned 17:16 21:11

merely 25:337:10

met 38:24mind 11:13

22:14minimal 32:3minor 16:5 17:8

18:5,6 19:2419:25 20:544:15,24

minority 46:1252:15

minute 48:6minutes 50:6mirrors 33:13misdemeanor

22:23Missouri 45:19

45:21mistake 26:3mistaken 3:25

4:2

Model 16:1828:14 30:2,5,630:8,10,12,15

modified 40:1041:7 42:1,2154:4

month 29:20Motor 20:25

move 21:3murder 11:24

11:25 12:153:4,9

N N 2:1,1 3:1narrow 42:3narrower 3:24

12:21 16:11,1219:1 46:5

national 18:7Nationality 3:13

8:13natural 3:22

4:11,16,21

5:14,19 6:166:19 25:1744:3,10,15,1844:20,23 45:645:12,20,23,2446:4,7,1447:10,11 48:248:11 49:13,2049:24 52:953:5

naturally 6:23nature 25:14necessarily 37:4

38:4 39:140:19 43:1546:24

necessary 17:19need 37:1 38:17

40:3 41:642:16,20 43:20

needed 9:6needs 36:17,20

38:6

neighbor 31:10never 6:2 19:5New 1:19Nguyen 48:12Ninth 3:11,20

3:25 4:1 7:4,107:20,25 8:168:22,22,24,25

9:4,5,8,1710:14,19,21,2210:23 12:9,1212:18,22 24:2124:24 25:2,12

25:14,19 26:2527:17,18,2232:7,8,10,1032:17 42:23

non-Taylor 46:24

note 27:22 40:2241:6,17 43:3

notion 13:4notions 49:15novel 13:9,15

49:25 50:12number 4:3

15:21 17:1147:16

N.Y 1:19

O O 2:1 3:1objective 51:9obtained 4:4,10obtains 4:11odd 34:7,10

39:11offense 3:12,18

3:20,23 4:185:13 9:1110:15,25 11:411:6 12:814:18,19 17:2118:14,17,18,2118:22 20:1621:1,5 22:1222:16,25 24:13

25:11 26:2127:19 28:1930:19 32:2433:3 34:642:15 46:1050:3 52:8,1452:15 53:954:7,8,8

offenses 30:1,333:6 46:2048:12

office 53:21Okay 6:7 37:14

one's 30:6 49:21open 8:1,4,21,22

8:25 13:1437:9 51:16

operating 33:11opinion 27:1,5opposed 21:4oral 1:12 2:2,5

3:7 23:23order 10:21 11:2

23:2 40:25

42:8ordinarily 4:7original 53:20

53:21outside 26:21,24

27:19 32:2334:15 42:2249:9

owner 21:18,2421:25 22:6,1827:3 28:1829:7

P P 3:1page 2:2 46:2part 16:9 25:10

53:18,19particular 4:8

9:15 10:1711:13 13:821:9 23:534:15 41:11,15

52:23particularly

10:11partly 43:19party 14:13Partying 45:4pass 9:9 40:8passed 15:19





Page 62

33:18,21 46:15penal 16:18 21:1

21:4 24:528:14 30:2,5,630:8,10,12,15

33:6,7,12,1540:6

penalties 17:2penalty 30:23,25Penuliar 10:23

10:23 11:225:13,13

people 25:1637:17,17,2038:9,14 45:2248:9,12 50:1

perfectly 12:113:13

permanent 24:16 26:2,4,926:12 27:4,1527:16

permanently 21:18,24 28:16

person 14:1319:1 31:2436:10 38:1739:10 40:542:15 43:2544:3,4 48:1351:20

personal 27:25Peruvian 25:25petition 15:3petitioned 12:14petitioner 1:5,18

2:4,10 3:8 9:2350:9

phrase 14:12,15

15:6pick 24:2picked 31:3place 29:9 31:11

36:8places 17:6plain 35:24plausible 34:1

plea 40:16,16pleading 15:18

35:1 37:12please 3:10 24:1point 4:13 7:2

9:19 13:14,2114:12 15:524:2 28:1329:3 32:7 35:438:23 42:9

points 7:3 45:8portion 28:18

29:7position 16:13

16:16 27:1537:11 41:21

52:18 54:16possession 26:1possibilities

13:21possibility 39:12

51:16possible 4:7 11:1

11:5 15:834:23,24,2539:17

potential 20:1550:13

potentially 8:9practice 54:9Prado 38:9,14premise 13:5

17:17prescribed

23:14presentation

26:22presented 7:13

7:15,16,18

9:22 14:3 32:932:17

presumably 33:13

presumed 13:19prevail 54:17primarily 25:1primary 54:12

principal 5:76:12 14:23,2415:2,7,10,1316:3 17:2,4,1417:21 18:14,17

19:10,15,2134:20 35:10,1536:1,3,6 43:1343:22 53:7,9

principals 4:6principle 6:25

31:8 38:341:19

principles 31:751:21

prior 9:5,11

10:23prison 22:24

23:2 53:6probable 3:22

4:11,16 5:145:20 6:16,1925:17 44:4,1044:15,18,2045:6,12,20,2345:24 46:4,746:14 47:10,1147:23,24 48:248:11 49:13,2049:24 52:1053:5

probably 4:139:20 44:23

problem 5:339:22 48:252:5

problems 53:17Professor 28:13

29:25

proof 4:20 5:216:17 31:2540:21

properly 9:169:18 47:1248:3

property 21:2322:7,18 27:2

28:1,8propose 18:4proposed 50:13proposition

45:16

prosecuted 23:943:1,4,6,10

prosecutor 21:3prosecutors

31:24prove 4:7,17

20:20 37:952:3

provide 8:3 33:343:20

proving 5:18

6:16provision 8:13

13:20 20:422:25 23:126:10 31:2233:10,19 34:1543:7,16 51:351:13,15

provisions 33:2145:9,10 46:2452:1

purchasing 44:14,23

put 26:20 39:2140:16,16,1746:13

puts 39:25

Q qualify 20:13question 7:6,13

7:15,17,22 8:28:4 9:9,22 12:4

12:14,15 13:1414:3 15:1816:3 18:224:12 25:2326:7 28:3 29:429:4 30:1732:2,13,13,1934:23 35:7

36:12,14,15,1736:21 38:6,2238:23 39:6,641:13 42:17,1742:18,21 44:13

44:18 49:2250:22,23 54:10

questions 8:169:1

quite 15:2417:23

R R 1:3 3:1radical 13:15raise 9:23

raised 8:23,249:4,15,16

10:12raises 7:12

11:12 15:21range 8:10 19:2rape 47:21rationale 7:4

12:5rea 30:3,19 32:3

46:11,16,1850:2

reach 9:25 10:6reaching 12:5

24:9 51:18,24read 10:21 15:6reading 22:11

26:19real 48:7,8really 39:17

43:11 53:17reason 10:24

20:8

reasonable 18:18 28:21,2529:8

reasons 4:1,112:25 20:633:16 43:19

REBUTTAL 2:8 50:8





Page 63

receipt 21:22record 4:22

26:15 40:13reentry 24:18reference 30:5

54:8refers 25:16

46:22reflection 30:13regard 51:20regardless 52:11reject 12:24rejected 15:23rejects 45:22

46:4relatedly 33:25

relied 11:212:13,22 25:232:7

relies 11:1412:16 40:14

relieved 40:20rely 30:10 32:9

32:10 47:253:19

Relying 9:11remainder

23:19remaining 8:16

50:7remand 8:19

32:14 41:25remanded 42:23Remember

39:25removal 8:8

11:20 13:717:15

reply 14:11

report 28:6require 21:20,21

21:23 22:1832:3 35:1840:6

required 27:1627:16 30:134:14

requirement 11:21

requirements 11:16

requires 24:5

26:16 30:1940:6

requisite 30:346:11 50:2

reserve 23:18resident 26:2,5

26:9,12resolve 7:18 9:1

14:10resolved 7:14

16:14

respect 5:226:18 34:3 46:3

respond 49:17respondent 1:20

2:7 3:15 7:129:17,25 10:311:12 12:1615:15,21 22:1023:24 50:13

respondent's 3:16 4:9 10:1211:4 13:514:11 17:1719:3

response 15:21responses 33:9restatement

30:12return 27:21

31:3reversed 10:22review 7:7reviewing 17:20

ride 31:2riding 31:6right 14:9,21

15:20 20:221:13,14 27:2434:17 39:1051:25

rights 27:4

robbery 47:2047:20 48:11,15

ROBERTS 3:310:13 12:323:20 24:19,25

30:4,11 31:131:13 32:6,1232:16 35:1238:7 42:2543:9 46:1947:1,5 49:1850:4 54:11,21

round 40:9,10rule 3:23 4:11

4:14 6:17,1914:21 16:18,20

18:4,7 19:2420:9,11 21:1628:7,7,11 29:529:15 48:22,2349:1,19,2151:8 52:2553:23 54:4,554:18,19,19

rules 28:14ruling 10:17runs 20:14,24

S S 2:1 3:1Sandoval 37:21saying 7:4 11:3

11:8 20:1024:20 29:5,2336:19 37:746:15,17

says 28:8 30:2433:6 36:7 37:245:14,23

Scalia 5:25 6:5,76:21 8:15,199:19 10:3,616:2 18:219:23 23:13,1623:17 25:2226:13 28:20,2429:3 30:21

31:16 34:17,2234:25 36:7,1436:19 40:2345:4 48:6,1849:10

scheme 39:20,25School 41:20search 20:19second 19:22

20:8 30:240:12 42:17,21

Section 33:1943:6

see 18:25 19:527:7 39:16,16

seeing 52:13

seek 10:3seeking 9:23

46:9Seidler 30:8send 42:20sense 12:18 13:3sent 9:12sentence 23:11

23:13,14,15sentenced 22:24

23:1sentencing

24:17,17separate 4:19

14:5 23:7serious 24:7,14

31:20 32:1,1,4set 30:17 35:17

35:20sets 30:2 38:5

45:13sex 48:11Shepard 38:25

38:25 40:1841:12 52:7

shifting 50:19shorthand 30:9show 5:21 35:8

35:9,14 40:343:19 48:1650:15

shown 39:1side 39:21significant

28:18 29:7similar 33:10

simple 16:8simply 7:24

10:22 12:1913:10 18:2239:8,13,1453:12

single 8:8 20:12sir 49:18slightly 3:24

12:21,21Solicitor 1:16

somebody 13:2314:24 15:10,1216:25 19:6,1019:14,17 22:2328:1,8 42:1245:3 47:1053:8

sorry 34:24sort 50:19sounds 38:21

48:18source 29:15,16

30:2sources 29:24Souter 4:12 5:2

5:12 6:9 15:1737:6,14 52:552:18 53:12,1553:24 54:3

so-called 3:22specific 25:16

35:19specifically

38:15 42:14specificity 35:19spend 53:6squarely 37:24standard 49:12standards 17:9stands 13:17stark 48:16





Page 64

started 4:18 7:3state 16:23

17:25 18:2222:20 26:7,831:8 34:14

41:21 45:1949:1,2,1951:23 54:9

stated 21:1725:13 27:1733:24 39:13

statement 25:24states 1:1,13

24:16,16 26:2328:13,15,1529:17 30:18

44:19 45:14,1545:17 46:1248:22 49:12,1649:23 50:1152:12,23 54:1554:19

stating 45:11status 20:13statute 3:17,19

3:21 10:2412:2 14:13,1914:23 15:5,618:22 19:2,5,819:9 20:14,2521:8,15,19,2022:5,11,1323:9 24:4,1325:4 26:2131:19,21 32:232:2,23 33:234:12,18 37:237:2 38:10,1538:18 39:8,9

39:14 42:6,1142:13 44:1,1,546:15 50:1553:21

statutes 22:1922:22,23 42:4

statutory 34:1134:11 43:16

steal 21:16,2124:5,9 26:1728:20 30:17,1932:4 40:7

stealing 14:15

28:25 29:4step 41:15 47:4STEVENS

13:24 14:637:15,19,23

stolen 21:23strength 10:22stress 42:2stressed 25:14strictly 13:23subject 17:1,3

22:7 53:7submission 10:9

12:12 14:12,2020:3 54:12

submit 8:9submitted 54:22

54:24subsequent 5:8

5:11,19,23 6:636:11 51:25

subsequently 27:18

substantive 20:16

subsumed 10:19suffice 19:13

40:24sufficient 13:11

13:17 21:22,2525:5 27:1732:4 42:15

sufficiently 42:19

suggest 15:1517:18 42:23

suggested 14:1126:23 51:10

support 45:16supported 10:18supports 38:15supposed 39:18

Supreme 1:1,1333:23

sure 27:9 29:2430:24 44:947:15

sweep 25:20switching 44:9

T T 2:1,1take 4:24 9:7

12:5 16:5 25:527:15 28:1,2,828:9,16 29:629:19,20 36:136:9,23 37:2

53:12taker 36:5takes 31:10,10talk 38:2talking 25:19

36:20target 5:6,10,21

5:22 6:18Taylor 30:7

34:13 38:24,2546:22 49:550:11,18,21,23

52:7 53:14,1753:20,24 54:5

teenager 31:10tell 18:20 19:9

29:19 49:10temporarily

22:1,8,9term 3:11 14:12

14:16 32:2234:1,11,12

terms 22:5,25

30:13test 38:5Texas 46:6thank 23:20

44:12 50:454:21

theft 3:11,17,183:20,23 4:19

5:13,16 6:39:11 10:15,1610:25 11:4,612:8 14:18,1918:3,3,6,18

21:2,5,7,8,9,1922:12,12,16,2524:4,11,1325:11 26:16,2127:1 28:2,9,1028:19 29:6,1429:20 30:1,330:19 31:17,2031:23,25 32:2433:2 34:539:11 42:6

45:10 46:10,1746:18,20

theoretically 11:5 15:839:16

theory 3:24 4:94:17,20 5:206:21 9:15 11:113:5,10,15,1816:25 17:1819:3,7 20:1520:22 45:746:5 50:1251:24 52:6,1053:5

theretofore 51:18

thing 10:1339:11

things 37:10think 4:25 7:11

7:14,16 8:29:13 10:21

11:8,12 12:2212:23,24 13:1313:17,19 14:214:4,9 15:2215:25 16:17,2317:6 18:9,1122:14 23:327:6 29:11

34:9 38:1439:25 43:2444:7 50:17,2151:2 52:5,2453:2,16 54:17

54:17,18thinks 16:18third 30:4thought 4:15 6:7

6:8 9:4 13:431:3 35:24

three 12:16tied 50:25time 8:12 20:24

23:19 28:17,2128:22 29:1,8

33:21 36:8today 3:4 26:22Toro 37:18,19

37:21total 27:5touchstone

53:13tracks 15:5traditional 31:7treated 4:3 23:2

23:12 52:1treatment 25:6triggering 24:14true 9:8 12:11

28:15 46:1,2,6trying 28:5,6

41:10Tuesday 1:10turning 44:17two 7:14 9:20,24

12:18 18:1521:3 22:1526:7 29:24

33:9 40:1,1042:4,10

type 11:11 18:13typical 11:23

U Uh 32:15ultimate 38:5,20





Page 65

ultimately 4:18 28:15 we've 14:11 1872 33:1810:8 20:7 vehicle 3:17 15:18 1875 31:850:20,23 20:25 21:4,19 wide 45:7 1898 33:24

unauthorized 22:12,19 24:7 widely 16:17 192 48:914:15 22:19 33:8 36:9,10 willfully 36:8,22 1988 51:15

understand 5:25 36:23 37:8 1992 25:2521:14 27:23 verify 29:21 wiser 10:10 16:8 1994 26:128:24 32:6 version 53:20,21 wish 10:7 1998 26:3,941:19 45:5

understanding 22:11

unhappy 16:14unheard 51:18uniformity

49:16unintended

47:21 48:15

versus 3:4 38:950:11

view 7:6 8:2330:16,22 35:636:1 38:1542:20 43:2144:20 45:12,1746:12 52:16

violate 44:5

wishes 10:4wording 39:14words 27:25world 39:12wouldn't 5:2

6:12 10:1816:2,7 18:1220:6 34:7,9

39:10,11 43:14

2 2 24:1720 24:1820-20 52:222002 48:92006 1:1022 45:13,15

23 2:7

United 1:1,1324:15,16 50:11

unlawfully 36:936:22

unnatural 48:19unreasonable

28:17,21unusual 19:18

50:12uphold 10:4urge 7:2,8use 22:19 45:22

45:24uses 4:14 15:6

violation 3:17Volvo 29:12

W Wait 29:10 48:6waiver 26:10want 10:1 16:4,4

29:10,18,19,2339:23

wash 7:5Washington 1:9

1:17wasn't 7:19,21

9:12,16 12:935:3 52:3 54:1

51:6 53:10,11wrinkle 52:23wrong 4:16 27:1

27:5,6W-e-s-t 37:20

X x 1:2,8 47:11

Y Y 47:12,13

Yeah 47:5year 22:24 23:2

23:11 29:13,21years 24:18 26:8

3 3 2:430 29:1232 33:19 43:6

4 42 28:15 30:18487(d) 21:12

24:5 26:16499(b) 33:12,16

5 5 1:1050 2:10

V v 1:6 25:16 31:8

37:17,17,2038:14 41:1945:22 48:9,12

value 28:19 29:7variations 17:8

18:5,6 19:2519:25 20:5i d 24 7

wasting 35:3way 10:21 33:22

35:11 36:2338:9 43:248:23 50:2553:7,22

ways 10:17

weird 39:949:15

W 37 17 19

29:12 41:9York 1:19

0 05-1629 1:6 3:4

1 10:06 1:14 3:2108.51 31:12,21

32:21 33:11 13

6 60 41:9

7 720 48:10

8 8 27:22

Documents

US Supreme Court: 05-1629