SCOTUS: Generic Theft Includes Aiding & Abetting Theft

Last week the Supreme Court weighed in with another opinion that's significant for those of us who defend illegal reentry cases, as well as anyone who finds themselves dealing with the Taylor/Shepard categorical approach: Gonzales v. Duenas-Alvarez, No. 05-1629 (U.S. Jan. 17, 2007) (previewed here).

The case presented the question whether the term "theft offense" in 8 U.S.C. § 1101(a)(43)(G) (part of the "aggravated felony" definition) "includes the crime of 'aiding and abetting' a theft offense." Maj. op. at 1. Applying the Taylor categorical approach, the Court answered "yes." Although the common law distinguished among 1) first degree principals, 2) second degree principals, 3) accessories before the fact, and 4) accessories after the fact, every State and the Federal government has "'expressly abrogated the distinction' among principals and aiders and abettors who fall into the second and third categories." Id. at 5-6 (citing LaFave) "Since criminal law now uniformly treats those who fall into the first three categories alike, 'the generic sense in which' the term 'theft' 'is now used in the criminal codes of most States' covers such 'aiders and abettors' as well as principals." Id. at 6 (citing Taylor).

The Court also reached the question of whether California law on aiding and abetting liability is broader than the generic view of aiding and abetting. Duenas argued that it is, due to the fact that in California "an aider and abettor is criminally responsible not only for the crim he intends, but also for any crime that 'naturally and probably' results from his intended crime." According to Duenas, California's version of the natural-and-probable-consequences doctrine is broader than most States', thus making his prior conviction for aiding and abetting vehicle theft under Cal. Veh. Code § 10851(a) nongeneric theft.

After reviewing California case law however, the Court did not agree that California's conception of aiding and abetting is significantly different than that of most other states. In so doing, the Court made this important statement about the Taylor categorical approach:

[I]n our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Maj. op. at 9.

As a special bonus, the Court's opinion includes a handy appendix with citations to statutes and case law involving theft, aiding and abetting, and the natural-and-probable consequences doctrine, in case you ever need to research those matters.