[00:00:00] Speaker 02:
If you want to save time for rebuttal, just please watch the clock.

[00:00:04] Speaker 03:
Good morning and may it please the court.

[00:00:11] Speaker 03:
This matter was held in abeyance during a time that the court was hearing the Cordero Garcia and then ultimately Pugin went to the Supreme Court.

[00:00:22] Speaker 03:
The main issues of the case were already resolved in the Pugin and when Cordero Garcia returned to the Ninth Circuit.

[00:00:31] Speaker 03:
However, it's our position that the matter that was not addressed in Cordero Garcia was the additional element of malice and knowingly that was included in the

[00:00:45] Speaker 03:
the California Penal Code 136.1C, which would go to the issue as to the specific intent of the crime.

[00:01:00] Speaker 03:
Adding the elements of malice as defined in the code would include an intent to vex, annoy, harm, or injure in any way other than the person

[00:01:11] Speaker 03:
or to thwart or interfere in any manner with the orderly administration of justice.

[00:01:18] Speaker 03:
The parties in Cordeau Garcia did bring up this argument.

[00:01:24] Speaker 03:
However, the court said in subsection B, which was at issue in that case, that

[00:01:32] Speaker 03:
That was not an issue because it wasn't the crime at stake.

[00:01:35] Speaker 03:
However, here we're at California Penal Code 136.C and we have this additional element which may interfere or affect the specific intent in the crime.

[00:01:51] Speaker 03:
Additionally, subsection C has additional elements, basically a sentence enhancer which states that this crime could be committed if any other crime in any other state or any other jurisdiction or any other time would be

[00:02:13] Speaker 03:
If they were convicted of any crime similar to this, then they could be convicted of this crime.

[00:02:17] Speaker 03:
So there are additional elements that would go to the specific intent of this case.

[00:02:23] Speaker 03:
And thus, it would require a modified categorical approach looking into the specific

[00:02:32] Speaker 03:
factors in this case.

[00:02:34] Speaker 04:
Council, may I interrupt you for just a second?

[00:02:36] Speaker 04:
Is your argument that the California statute has an element in it which the federal statute does not and therefore there is no categorical match?

[00:02:47] Speaker 03:
That's correct, Your Honor.

[00:02:48] Speaker 04:
Well, but the added element of the California statute is malice, right?

[00:02:56] Speaker 04:
Correct.

[00:02:56] Speaker 04:
You can be convicted under the federal statute without malice, right?

[00:03:01] Speaker 03:
That is correct.

[00:03:02] Speaker 04:
So the California statute does not require more than the federal statute, but requires less than the federal statute.

[00:03:13] Speaker 04:
Why is it not a categorical match?

[00:03:17] Speaker 03:
So the issue is this is a specific intent crime under California code and in the federal law.

[00:03:28] Speaker 03:
The issue is that this crime committed could have been convicted or committed without the intent to commit or thwart or interfere with obstruction of justice.

[00:03:42] Speaker 03:
Federal crime can?

[00:03:45] Speaker 03:
The federal crime would require a specific intent in their actions where the state action with malice element does not require it.

[00:03:55] Speaker 04:
Malice element does not require specific intent.

[00:04:00] Speaker 04:
You've lost me a little bit.

[00:04:02] Speaker 03:
Try again.

[00:04:03] Speaker 03:
So if you add the specific intent of the malice requirement, in this description of the California Penal Code of Malice, it could be for the purposes of vexing the victim, annoying or harming.

[00:04:20] Speaker 03:
That does not go to the fact that

[00:04:24] Speaker 03:
That could be, so the actions could have been just for the purpose of harming, annoying or vexing the person and not necessarily for the purpose of thwarting proceedings or an investigation.

[00:04:41] Speaker 01:
I'm sorry.

[00:04:42] Speaker 01:
I'm really confused by your argument.

[00:04:45] Speaker 01:
Can we first just clarify?

[00:04:47] Speaker 01:
Could you use the microphone, please?

[00:04:48] Speaker 01:
Oh, I'm so sorry.

[00:04:49] Speaker 01:
I'm confused by your argument.

[00:04:51] Speaker 01:
Can we first just confirm that you're no longer arguing that ongoing proceeding or investigation is required?

[00:04:58] Speaker 01:
You're abandoning that argument.

[00:04:59] Speaker 01:
Is that right, after Pugin?

[00:05:01] Speaker 01:
Or are you still asserting that?

[00:05:03] Speaker 03:
Well, because of the recent case decisions, I understand that

[00:05:10] Speaker 01:
You're not making that argument.

[00:05:11] Speaker 03:
I'm not making the argument.

[00:05:12] Speaker 03:
The only argument I would evade based on that, Your Honor, is that I'm still unsure when an investigation is starting and not when an investigation, at what point does an investigation start.

[00:05:26] Speaker 03:
And I guess that goes also to the fact that it depends on, you know, so at what point does an investigation start?

[00:05:35] Speaker 03:
I understand that now we don't have to have an investigation or proceedings

[00:05:38] Speaker 01:
You don't have to have a proceeding or investigation at all.

[00:05:41] Speaker 01:
What does it matter whether it's ongoing or not?

[00:05:45] Speaker 01:
So you're not you're not making this argument anymore.

[00:05:47] Speaker 01:
I'm sorry.

[00:05:48] Speaker 01:
Okay, thank you.

[00:05:49] Speaker 01:
Thank you for clarifying that.

[00:05:50] Speaker 01:
I guess I'm still kind of confused.

[00:05:52] Speaker 01:
I thought that Cordero Garcia

[00:05:58] Speaker 01:
You know addressed the intent requirement and so I'm just finding it a little bit confusing.

[00:06:06] Speaker 01:
Why doesn't Cordero Garcia address the intent mens rea point here?

[00:06:12] Speaker 03:
They are and the difference would be that in Cordero Garcia they were looking at California Penal Code section 136.1B as opposed to C which adds the malice requirement.

[00:06:28] Speaker 01:
But there are federal statutes that say you have to do it corruptly.

[00:06:32] Speaker 01:
There's certainly other federal statutes that would have that equivalent requirement knowingly or maliciously, right?

[00:06:40] Speaker 03:
No, no.

[00:06:41] Speaker 03:
Knowingly, I'm not sure about maliciously.

[00:06:44] Speaker 03:
I believe that the court at that time did not bring that issue up.

[00:06:50] Speaker 01:
OK, you think there are federal statutes that have the same knowingly requirement?

[00:06:55] Speaker 03:
Knowingly, yes.

[00:06:56] Speaker 03:
Not maliciously.

[00:06:59] Speaker 01:
But the federal statutes also say corruptly.

[00:07:02] Speaker 03:
Corruptly.

[00:07:03] Speaker 03:
And I'm not addressing that.

[00:07:08] Speaker 04:
Would you?

[00:07:09] Speaker 04:
I'm having difficulty following you.

[00:07:11] Speaker 04:
Sure.

[00:07:12] Speaker 04:
Just give me the nut of your argument.

[00:07:16] Speaker 03:
Sure.

[00:07:20] Speaker 03:
The charge, the code in this section, adds an element of maliciously.

[00:07:26] Speaker 04:
California statute has an element of maliciousness.

[00:07:31] Speaker 04:
That's what you're saying, right?

[00:07:32] Speaker 03:
Correct.

[00:07:33] Speaker 04:
Okay, I got that.

[00:07:34] Speaker 04:
Now what's your next point?

[00:07:36] Speaker 03:
The point is that that leaves the intent broadly.

[00:07:44] Speaker 03:
it disrupts the specific intent requirement.

[00:07:47] Speaker 04:
That's the mens rea requirement.

[00:07:49] Speaker 04:
I've got that.

[00:07:51] Speaker 04:
Next point.

[00:07:52] Speaker 03:
So the fact that it could be divisible, so basically it says it could have been just for the intent of annoying or vexing the victim, and not necessarily for the purpose of thwarting ongoing proceedings or investigation.

[00:08:16] Speaker 03:
And so therefore the therefore therefore it disrupts the mens rea requirement required for the code federal statute But you just said you're not arguing ongoing proceeding our investigation anymore No, I'm not arguing that element your honor.

[00:08:33] Speaker 03:
I'm not I'm arguing the specific intent element

[00:08:37] Speaker 02:
But the thwart to intent to interfere is related to ongoing, isn't it?

[00:08:44] Speaker 03:
That element is to... So we established there doesn't have to be ongoing proceeding, but the fact that there could be proceedings in the future, then you would have the element, mens rea, right?

[00:08:59] Speaker 03:
If they were trying to stop the police from stopping them from calling the police, which eventually would end up being an investigation,

[00:09:07] Speaker 03:
Then you have the mens rea, right?

[00:09:10] Speaker 03:
Here we're talking about, for example, in this case, they were also charged for domestic violence issues, and clearly there was a fight

[00:09:20] Speaker 03:
involved.

[00:09:21] Speaker 04:
I'm trying to grasp your point and I'm having a little difficulty, perhaps I don't hear you that well, but it seems to me that the crime of conviction here, the California crime, is a crime for dissuading a witness by force of threat.

[00:09:35] Speaker 04:
A witness to an investigation is sufficient as for Cordero.

[00:09:41] Speaker 04:
Now why is that not a categorical match to the federal crime of aggravated felony relating to obstruction of justice?

[00:09:50] Speaker 03:
Yes.

[00:09:51] Speaker 03:
I'm saying that because the crime could have been committed for the purpose of just vexing and annoying.

[00:09:57] Speaker 04:
But vexing a witness in the obstruction of justice, not vexing a witness because she doesn't comb her hair well.

[00:10:08] Speaker 03:
Correct.

[00:10:09] Speaker 03:
But the ultimate effect was vexing the witness for obstruction of justice.

[00:10:14] Speaker 03:
But he didn't have the specific intent at that time

[00:10:18] Speaker 03:
To obstruct justice.

[00:10:22] Speaker 04:
So why isn't that a caracal match?

[00:10:25] Speaker 03:
My interpretation of the law is that because it's not meeting the mens rea requirement.

[00:10:35] Speaker 04:
It's not?

[00:10:36] Speaker 03:
It's not meeting the mens rea requirement.

[00:10:38] Speaker 04:
Does not meet the mens rea requirement of the federal statute?

[00:10:41] Speaker 03:
Well, of the federal statute because it's broader than the federal statute.

[00:10:48] Speaker 04:
broader because it can be vexing rather than obstruction of justice, but vexing to cause obstruction of justice is a state crime, correct?

[00:10:59] Speaker 04:
Correct.

[00:11:01] Speaker 04:
I don't get your point.

[00:11:03] Speaker 01:
You know, I'm looking at a federal statute, 18 U.S.C.

[00:11:06] Speaker 01:
1512, whoever intentionally harasses another person and thereby hinders, delays, prevents or dissuades any person from attending or testifying in an official proceeding, reporting to a law enforcement officer, et cetera.

[00:11:19] Speaker 01:
Wouldn't that intentionally harasses, involve vexing and annoying a victim?

[00:11:25] Speaker 03:
So, my argument is that it would be, that is with the knowledge of

[00:11:34] Speaker 03:
proceedings or investigation going on.

[00:11:37] Speaker 03:
This action was prior to knowledge.

[00:11:41] Speaker 03:
This may have occurred in the heat of an argument while they're fighting and not necessarily done.

[00:11:49] Speaker 01:
OK, but let's look at the specific language here.

[00:11:53] Speaker 01:
So Cordero Garcia already said that every person who attempts to prevent or dissuade another person

[00:12:04] Speaker 01:
from making any report to a peace officer.

[00:12:06] Speaker 01:
And that was a categorical match.

[00:12:09] Speaker 01:
So if we look at what else falls in C1, it's even more related to investigations.

[00:12:16] Speaker 01:
So B2 says, causing a complaint, indictment, information, probation, or parole violation to be sought and prosecuted and assisted in the prosecution, arresting or causing or seeking the arrest of any person in connection with that victimization.

[00:12:31] Speaker 01:
B2 and B3.

[00:12:33] Speaker 01:
A1 is knowingly and maliciously preventing or dissuading a witness from testifying at a trial or proceeding.

[00:12:41] Speaker 01:
B2 is knowingly maliciously attempting to prevent a witness from attending or giving testimony at trial.

[00:12:48] Speaker 01:
I mean, if anything, the other sections that fall within C1 are more tied

[00:12:55] Speaker 01:
to an investigation or a criminal case, right?

[00:13:00] Speaker 01:
More than B1, which the Ninth Circuit already said is a categorical match.

[00:13:06] Speaker 01:
Yes, Your Honor.

[00:13:06] Speaker 01:
You would agree with that, right?

[00:13:08] Speaker 01:
So then I'm kind of agreeing with Judge Baya.

[00:13:11] Speaker 01:
I'm just confused then by

[00:13:15] Speaker 01:
your argument.

[00:13:16] Speaker 01:
You're saying, oh, the person would have no idea that there was anything criminal related to a criminal case or obstruction at all.

[00:13:24] Speaker 01:
It's just annoying somebody.

[00:13:26] Speaker 01:
But that can't be the case because you do have to meet these other requirements for a C1 violation, right?

[00:13:34] Speaker 03:
Well, yes.

[00:13:36] Speaker 03:
And then it's also, there are multiple parts, but prong C1, I think threes were

[00:13:44] Speaker 03:
You know, I understand it's a complex argument.

[00:13:52] Speaker 01:
Yeah, I also think you don't have a state court case where somebody would actually get prosecuted for just vexing and harassing under these statutes, right?

[00:14:05] Speaker 01:
Don't you have?

[00:14:07] Speaker 01:
OK.

[00:14:10] Speaker 02:
You have about a minute left.

[00:14:11] Speaker 02:
You want to save that?

[00:14:12] Speaker 02:
Thank you.

[00:14:27] Speaker 00:
Excuse me.

[00:14:28] Speaker 00:
Good morning.

[00:14:28] Speaker 00:
May it please the court.

[00:14:29] Speaker 00:
My name is Craig Newell, and I'm here on behalf of the Attorney General.

[00:14:33] Speaker 00:
Mr. Godoy, Aguilar's conviction for preventing or dissuading a witness by force or threat under California Penal Code, Section 136.1C1,

[00:14:43] Speaker 00:
It categorically constitutes an aggravated felony offense relating to obstruction of justice.

[00:14:49] Speaker 00:
This outcome is beyond arguable dispute after Pugin and Cordero Garcia.

[00:14:55] Speaker 00:
And the reason why there's no difference than in Cordero, because subsection C1, just like B1, covers acts that interfere with the legal process and requires a specific intent to do so.

[00:15:08] Speaker 00:
The malice requirement that Mr. Godoy is relying on does not broaden the statute, but it narrows it.

[00:15:17] Speaker 00:
And the best way to understand this is that C1 is the aggravating offense.

[00:15:23] Speaker 00:
you have to prove all the elements of a violation under A or a violation under B plus the malice and plus the force or threat.

[00:15:32] Speaker 00:
So to prove an A offense under A which is about testifying or B which is about the reporting to the police or starting a prosecution or causing arrest, all of those require as an element an intent to impede that particular

[00:15:52] Speaker 00:
legal process, the investigation or a judicial proceeding.

[00:15:56] Speaker 00:
So the specific intent is already there from A and B. The malice just adds on to that.

[00:16:03] Speaker 00:
So even if you take the fact that the malice definition is listed in the disjunctive and there's vex, annoy, or thwart the administration of justice, even if someone has proven to have done it for the purpose of annoyance,

[00:16:19] Speaker 00:
they would not have been convicted under C unless they've also been proven to have done it with a specific intent to dissuade the witness from testifying.

[00:16:28] Speaker 00:
This is supported by California case law.

[00:16:33] Speaker 00:
I'll just reference a few decisions that are cited in our answering brief.

[00:16:38] Speaker 00:
It's Petty, Ford, Womack, all of those are C-1 prosecutions.

[00:16:45] Speaker 00:
And they all say things such as, in Petty it says,

[00:16:48] Speaker 00:
that here the prosecution was required to prove that the defense intended to prevent or discourage delgadio, that was the witness, from reporting a crime.

[00:16:56] Speaker 00:
You need to do that in addition to the malice.

[00:16:59] Speaker 00:
And so while in Cordero the court

[00:17:02] Speaker 00:
kind of avoided that because it didn't need to get into the what does it mean to be malice under under California law again doesn't matter just like it doesn't matter in Cordera because no matter what for a C1 violation just like a B or an A violation you need that specific intent to interfere with the legal process and by having that you have an aggravated felony offense that relates to obstruction of

[00:17:29] Speaker 00:
justice that renders Mr. Godoy removable from this country.

[00:17:34] Speaker 00:
If there are no further questions, the court should deny the petition for review and not disturb the final order of removal in this case.

[00:17:39] Speaker 01:
I have a question.

[00:17:40] Speaker 00:
Sure, Your Honor.

[00:17:40] Speaker 01:
Your previous definition of obstruction of justice included the ongoing proceeding and investigation.

[00:17:46] Speaker 01:
Do you now just have the same definition minus that third element or are you defining it differently now?

[00:17:53] Speaker 00:
The definition I

[00:17:56] Speaker 00:
The particular definition, I think, is still an outstanding question, but one that doesn't need to be, the parameters don't need to be defined here.

[00:18:04] Speaker 00:
That definition from Mallard of Valenzuela-Galardo was in response to this court asking for a more narrow definition.

[00:18:12] Speaker 00:
But the Supreme Court has said that you don't need the ongoing investigation, and you don't even need a foreseeable investigation like that old definition.

[00:18:21] Speaker 00:
said because of this specific intent requirement.

[00:18:25] Speaker 00:
And Pugin really focuses on a notice that Congress defined this as a relating to obstruction of justice offense.

[00:18:34] Speaker 00:
That relating to phrase broadens it.

[00:18:36] Speaker 00:
So what we're looking for is one, that specific intent to interfere, and two, an offense that relates to the interference with the legal process.

[00:18:46] Speaker 00:
And we have both of those here.

[00:18:47] Speaker 00:
The court doesn't need to

[00:18:49] Speaker 00:
Go into more specifics than that for purposes of this case.

[00:18:57] Speaker 00:
No questions.

[00:18:58] Speaker 00:
Thank you, Your Honors, for my time.

[00:19:00] Speaker 00:
Thank you.

[00:19:06] Speaker 03:
No further rebuttal, Your Honor.

[00:19:08] Speaker 02:
Great.

[00:19:09] Speaker 02:
Thank you both.

[00:19:11] Speaker 02:
The case has been submitted.