[00:00:11] Speaker 04:
Good afternoon.

[00:00:13] Speaker 04:
May it please the court, Jason Choi on behalf of petitioner Fernando Cordero-Garcia.

[00:00:20] Speaker 04:
With me today is co-counsel, Mr. Michael Mayer.

[00:00:24] Speaker 04:
I would like to reserve three minutes for rebuttal.

[00:00:29] Speaker 04:
The court asked the parties to address two specific questions today.

[00:00:34] Speaker 04:
The plain language of section 136 answers both.

[00:00:40] Speaker 04:
With regard to the first question, subdivision B1 does not require a specific intent to interfere with the process of justice.

[00:00:50] Speaker 04:
The California legislature knew how to write a statute that requires an intent to interfere with the process of justice.

[00:00:59] Speaker 04:
In fact, they explicitly defined the term malice as used in section 136 to include an intent to interfere

[00:01:10] Speaker 04:
quote, in any manner with the orderly administration of justice.

[00:01:14] Speaker 04:
Yet they omitted that requirement from subdivision B1.

[00:01:20] Speaker 04:
As a result, that subdivision does not require an intent to interfere with the process of justice.

[00:01:27] Speaker 04:
In response to the court's second question, the lack of an intent to interfere with the due administration of justice also addresses the reasonable probability requirement.

[00:01:40] Speaker 04:
Because the over breadth of the statute is clear from its text, there's no need to go beyond the plain language of subdivision B1 to conclude that there's a categorical mismatch.

[00:01:53] Speaker 03:
Mr. Chair, can I take you?

[00:01:56] Speaker 03:
back to your first point.

[00:02:01] Speaker 03:
Subsection B1 requires, I think we all agree, at least the briefing suggests you all agree, a specific intent to dissuade a witness from reporting a crime or a victim from reporting a crime, correct?

[00:02:19] Speaker 03:
That is one way that the California cases... Yes, the California cases have described it that way.

[00:02:24] Speaker 03:
And I'm just trying to figure out

[00:02:27] Speaker 03:
The generic crime has to do with a specific intent to interfere with the process of justice.

[00:02:36] Speaker 03:
How can you intend to dissuade somebody from reporting a crime without also thereby intending to dissuade, whether intending thereby to somehow affect the process of justice?

[00:02:51] Speaker 03:
I'm having some difficulty in my own mind.

[00:02:54] Speaker 03:
I understand that one might have multiple motivations.

[00:02:57] Speaker 03:
One might say, don't report this victim because you'll get tied up in the court system and you might be embarrassed or just

[00:03:06] Speaker 03:
But if you're persuading somebody from reporting a crime, don't you have to have the intent to interfere with the process of investigating the crime, which is part of the process of justice?

[00:03:21] Speaker 04:
Not necessarily, and that's what subdivision A3 of section 136 tells us.

[00:03:30] Speaker 04:
Subdivision A3 creates a safe harbor, a presumption against malice in the event that a family member intercedes and attempts to prevent a witness in that case from testifying at a hearing or proceeding.

[00:03:46] Speaker 04:
So subdivision A3 tells us that

[00:03:50] Speaker 04:
someone may take actions and specifically with specific intent that have the effect of preventing someone in that case from testifying in a hearing or proceeding without malice, without an intent.

[00:04:05] Speaker 03:
Which way does that cut?

[00:04:07] Speaker 03:
We have a statutory provision here that

[00:04:09] Speaker 03:
in effect says one would normally infer malice from this, but under this circumstance, you might not infer malice.

[00:04:17] Speaker 03:
But we're not dealing with that.

[00:04:19] Speaker 03:
We're not dealing with an A3 violation here.

[00:04:22] Speaker 03:
We're dealing with a B1 violation.

[00:04:24] Speaker 03:
So I'm still trying to figure out how I can have a specific intent to dissuade somebody from reporting a crime without – and I'm trying to find the language of the federal statute – but without having a specific intent to do what the federal statute prohibits.

[00:04:41] Speaker 04:
I think Subdivision C of Section 136 addresses your question.

[00:04:45] Speaker 04:
Subdivision C of 136 applies to violations of Subdivision B, the subdivision issue here, but requires in addition to the specific intent required by Subdivision B, proof of knowledge and malice.

[00:05:02] Speaker 04:
So section 136 on its face recognizes that an intent malice which is defined as an intent to interfere in any way with the orderly administration of justice is proof in addition to the intent that is required by subdivision B. Those are distinct intents.

[00:05:22] Speaker 03:
Well, let's go back for a second, and maybe you can help me with this.

[00:05:26] Speaker 03:
The federal crime of obstruction of justice, the generic crime, if you will, statutory crime, requires a specific intent to do what?

[00:05:36] Speaker 04:
The Supreme Court said that it requires a specific intent to interfere with the legal process.

[00:05:42] Speaker 03:
With legal process.

[00:05:44] Speaker 03:
And the court made it clear that legal process, in our first iteration through this case, was not simply ongoing court proceedings, but the things that led up to court proceedings.

[00:05:56] Speaker 03:
Correct?

[00:05:57] Speaker 04:
The Supreme Court said that ongoing investigation of proceedings is not required.

[00:06:01] Speaker 03:
Right.

[00:06:02] Speaker 03:
So I guess thinking, just looking at the federal generic crime for a moment, why isn't someone who dissuades

[00:06:12] Speaker 03:
who acts with a specific intent of dissuading the reporting of a crime committing the federal crime.

[00:06:21] Speaker 03:
I'm trying to work backwards from the definition in the federal one to what we all agree is the definition of B-1.

[00:06:28] Speaker 04:
Because it's possible

[00:06:30] Speaker 04:
to specifically intend under Subdivision B-1 without a specific intent to interfere with the process of justice?

[00:06:38] Speaker 03:
Well, tell me how.

[00:06:39] Speaker 03:
I mean, you say that, but if the investigation by the police is the legal process, is part of the legal process that the Supreme Court tells us in Pugin can constitute obstruction of justice under the federal generic statute,

[00:06:57] Speaker 03:
Isn't the very definition of B1 that you're interfering with that legal process?

[00:07:03] Speaker 04:
Not necessarily.

[00:07:05] Speaker 04:
If you take the example of a parent whose child in this scenario has witnessed an incident of gang violence, the parent may say to the child, attempt to dissuade the child from reporting

[00:07:22] Speaker 04:
what he or she has seen for fear of retribution against the child.

[00:07:26] Speaker 04:
That same parent could very well intend, would want that instance of violence to be prosecuted.

[00:07:33] Speaker 03:
It's a separate question of whether they want the thing prosecuted or whether they've interfered

[00:07:39] Speaker 03:
with the investigation and prosecution of the crime.

[00:07:44] Speaker 03:
And all the specific intent here is to interfere.

[00:07:49] Speaker 03:
It's not necessarily to completely obstruct, is it?

[00:07:53] Speaker 04:
But that may be, but this is where the language of the California statute, the structure of the California statute that distinguishes between malice, defined as an intent to interfere with the orderly administration of justice.

[00:08:06] Speaker 04:
It specifically defines malice and distinguishes that from the intent required by subdivision B. So while it may be

[00:08:16] Speaker 04:
challenging, it is built into the statutory structure of section 136, this distinction between an intent to, wait.

[00:08:26] Speaker 02:
Have an argument along the lines of what you've been made, been made to the California courts, right, in trying to make certain arguments about those two provisions.

[00:08:39] Speaker 02:
And basically, as best I could tell, it seemed like the California courts, I can't remember if it was the California Supreme Court or courts of appeals,

[00:08:46] Speaker 02:
had concluded that you still have, that the specific, I mean, your argument that this, because malice is defined a certain way, it must mean that the other provision that just requires specific intent can't require that, but hasn't that basically been rejected by the California courts?

[00:09:09] Speaker 02:
not that I'm aware of, and to the contrary, in Bracken's, the California... What do you think the California courts, you know, you agree, I think you said this earlier, the California courts on the provision that's issue in our case, the California courts have said that it requires specific intent, right?

[00:09:26] Speaker 02:
Intent to interfere with somebody reporting a crime to the authorities.

[00:09:30] Speaker 04:
That is one way it's been formulated.

[00:09:31] Speaker 04:
It's also been formulated as a specific intent to influence the acts of a witness or victim more generally.

[00:09:40] Speaker 04:
It's been phrased more generally.

[00:09:41] Speaker 02:
Let's take the first way.

[00:09:42] Speaker 02:
In doing that, it seems like your argument is that

[00:09:50] Speaker 02:
you have to have some sort of heightened, like you have to be doing it for the wrong reason.

[00:09:55] Speaker 02:
Your motivation has to be the wrong reason.

[00:09:57] Speaker 02:
If you have a sympathetic reason that would be, then that doesn't count as specific intent under the federal generic statute.

[00:10:07] Speaker 02:
But where does that come from?

[00:10:09] Speaker 02:
I'm trying to figure out, I mean, at the end of the day, if I'm trying to get somebody not to report a crime, if I'm trying to interfere with the process of justice, but trying to do it for a very good reason,

[00:10:21] Speaker 02:
I'm still trying to interfere with the process of justice, aren't I?

[00:10:24] Speaker 04:
But that's not what Subdivision... that wouldn't get you a conviction under Subdivision B. Take, for example, the Bracken's decision from 2019, the California Court of Appeals.

[00:10:34] Speaker 04:
In that case, the defendant was convicted of a violation of Subdivision B-1 and challenged the jury instruction.

[00:10:42] Speaker 04:
that did not include a requirement of malice and did not include the safe harbor, the presumption against malice in the case of a family member.

[00:10:51] Speaker 04:
The California Court of Appeals upheld that conviction, found the elements of the defendant's defense on those issues immaterial because the subdivision B-1 defense does not require malice and therefore the

[00:11:07] Speaker 04:
the presumption of a family member trying to dissuade doesn't apply.

[00:11:12] Speaker 04:
By affirming that conviction, the California court applied subdivision B-1 in a way that did not require any proof, rendered the defense immaterial with regard to the defendant's motivation.

[00:11:26] Speaker 03:
It did require, however, intent to dissuade

[00:11:34] Speaker 03:
some witness or a victim from reporting the crime, right?

[00:11:38] Speaker 03:
B-1 does require that.

[00:11:41] Speaker 04:
That is one way it's been formulated, yes.

[00:11:43] Speaker 03:
Yeah, that's what the California courts say.

[00:11:46] Speaker 03:
And you don't seem to be disagreeing with the government that that's the specific intent that's required to violate B-1.

[00:11:55] Speaker 03:
So I'm trying to figure out no matter how one defines malice,

[00:12:01] Speaker 03:
Isn't that enough?

[00:12:03] Speaker 03:
Isn't a specific intent to dissuade a witness or victim from reporting a crime enough to establish the federal generic crime?

[00:12:15] Speaker 03:
Now, I'm not focused for a moment, not so much on how the California courts have parsed various words.

[00:12:22] Speaker 03:
But if one has a specific intent to dissuade a witness or a victim from reporting a crime,

[00:12:30] Speaker 03:
Why doesn't that constitute the federal generic crime?

[00:12:33] Speaker 04:
For the same reason that misprision of a felony has been found not to categorically match the generic crime.

[00:12:42] Speaker 04:
The statute says nothing about the purpose for which

[00:12:46] Speaker 04:
the defendant has dissuaded.

[00:12:48] Speaker 04:
In Espinosa Gonzalez, the BIA found that Mr. Prisoner of a felony did not categorically match the generic aggravated felony.

[00:12:59] Speaker 03:
Again, stick with, we know the specific intent required to violate the California statute.

[00:13:06] Speaker 03:
It's the specific intent to keep a witness or victim from reporting a crime.

[00:13:11] Speaker 03:
So my question is, why isn't the specific intent to keep a victim or witness from reporting a crime a categorical match for the federal generic crime?

[00:13:23] Speaker 04:
Because someone would have that intent required by B-1.

[00:13:27] Speaker 04:
without having the further purpose of interfering with the legal process.

[00:13:33] Speaker 03:
But tell me where in the federal generic crime you must also have a purpose as opposed to just the specific intent.

[00:13:42] Speaker 03:
See, the federal generic crime only requires the specific intent to obstruct justice.

[00:13:48] Speaker 03:
Yeah, that's what I mean.

[00:13:50] Speaker 03:
And so I think that you were—

[00:13:53] Speaker 03:
preventing a witness from reporting a crime or a victim from reporting a crime isn't enough to constitute a federal crime which requires a specific intent to obstruct justice.

[00:14:06] Speaker 04:
Because you can have a specific intent to dissuade a victim or witness from reporting a crime without a specific intent to interfere with the legal process.

[00:14:15] Speaker 04:
If, for example, in the case of Mr. Flores, one of the cases, the related cases, the cases that's related to Mr. Cordero Garcia's case, in that case,

[00:14:27] Speaker 04:
the government faced challenges in proving that Mr. Flores acted with knowledge or malice.

[00:14:35] Speaker 04:
So it charged him under B1 based on a record where he grabbed a phone after hearing, the last thing he heard is, I'm going to call someone to have you killed.

[00:14:46] Speaker 04:
So there was, on that record, no evidence that Mr. Flores knew the call he was stopping was to 911, and without that knowledge, he could not have intended to interfere with the process of justice.

[00:14:57] Speaker 02:
Did he plead in that case?

[00:14:59] Speaker 02:
He did.

[00:15:00] Speaker 02:
Yeah, and when he pled that he agreed that he had specific intent to interfere with, to interfere with the police investigation.

[00:15:12] Speaker 04:
That was not part of the information to which he pled guilty.

[00:15:15] Speaker 03:
It doesn't matter.

[00:15:16] Speaker 03:
What we do, we look at the, we're doing a categorical approach.

[00:15:20] Speaker 03:
So we don't look at the facts of his case.

[00:15:22] Speaker 03:
We look at what the statute requires and he pleaded guilty to a B-1 violation, which does require a specific intent.

[00:15:30] Speaker 03:
So

[00:15:31] Speaker 03:
moving away from the facts of any individual case, I'm still having some difficulty figuring out why the specific intent required to violate B-1 isn't enough to be a categorical match for the federal generic crime.

[00:15:49] Speaker 03:
I understand that each of these defendants in this case has admitted that he had a specific intent to prevent a victim or witness from reporting a crime.

[00:16:01] Speaker 03:
And so where we're still not meeting each other is I'm trying to figure out why a specific intent to keep a victim or witness from reporting a crime isn't the same specific intent that the generic federal obstruction of justice statute requires.

[00:16:24] Speaker 04:
I think the reason is because

[00:16:27] Speaker 04:
you're looking at the effect of the act.

[00:16:29] Speaker 04:
While a specific intent to dissuade or prevent someone from making the report may have the effect of interfering with

[00:16:37] Speaker 04:
the legal process, having an effect is different from an intent.

[00:16:44] Speaker 04:
And even the BIA recognized that in Espinosa Gonzalez.

[00:16:47] Speaker 04:
They said that not all acts that have the effect of obstructing justice are obstruction of justice.

[00:16:54] Speaker 04:
Not every act that has the effect of preventing legal process from moving forward reflects a specific intent

[00:17:00] Speaker 04:
to prevent the process from moving forward.

[00:17:03] Speaker 02:
Well, Council, we've taken you well over, but I'll make sure and give you some time for rebuttal.

[00:17:09] Speaker 02:
But I think we'll hear from the government.

[00:17:10] Speaker 02:
I'm curious to have the government respond to that.

[00:17:14] Speaker 02:
I didn't understand the government to be arguing that an effect is enough to, the mere fact that you might have an effect is enough.

[00:17:20] Speaker 02:
So we'll hear from the government on that, but we'll make sure you have time to respond to that.

[00:17:24] Speaker 04:
Thank you.

[00:17:36] Speaker 00:
May it please the court, Rebecca Hoffberg Phillips on behalf of the United States Attorney General.

[00:17:40] Speaker 00:
I'll jump right into where you left off.

[00:17:44] Speaker 00:
Is specific intent enough?

[00:17:45] Speaker 00:
Yes.

[00:17:46] Speaker 00:
Is it different from motivation?

[00:17:48] Speaker 00:
Yes.

[00:17:49] Speaker 00:
There is a difference between whether someone has a specific intent to do an act.

[00:17:53] Speaker 00:
Specific intent is a legal mens rea that has to be proven

[00:17:57] Speaker 00:
Okay, so the mens rea requires an action to be taken with a view or purpose of a specific outcome.

[00:18:03] Speaker 00:
So you have to specifically intend to affect a victim or witness.

[00:18:09] Speaker 00:
What's the motive?

[00:18:10] Speaker 00:
Well, there could be a lot of motives.

[00:18:12] Speaker 00:
There could be a motive to protect the witness.

[00:18:15] Speaker 00:
There could be a motive to protect the defendant.

[00:18:17] Speaker 00:
I'm not saying that there's any realistic probability that that's the case, but I'm saying there could be a variety of motives, and that's not what the inquiry is.

[00:18:24] Speaker 03:
What do you do with

[00:18:28] Speaker 03:
And maybe it's not important, but the structure of the California statute provides some difficulties, because a B2 violation requires malice.

[00:18:40] Speaker 00:
It doesn't require malice.

[00:18:42] Speaker 00:
Excuse me?

[00:18:43] Speaker 00:
Sorry, the B violation doesn't require it.

[00:18:45] Speaker 00:
B1 doesn't.

[00:18:45] Speaker 00:
Right.

[00:18:46] Speaker 03:
But the C1, or the other violations, require malice.

[00:18:50] Speaker 03:
Right.

[00:18:50] Speaker 03:
And malice is defined in a way that seems very close

[00:18:56] Speaker 03:
to what the federal generic crime is.

[00:19:00] Speaker 03:
So help me with that.

[00:19:01] Speaker 03:
I mean, why did they leave malice out of B1?

[00:19:05] Speaker 03:
They left malice out of B1.

[00:19:08] Speaker 03:
Who knows why they did it?

[00:19:09] Speaker 03:
They left malice out of B1.

[00:19:11] Speaker 03:
But you're saying that, in effect, B1 requires precisely what malice is defined as.

[00:19:18] Speaker 00:
I don't agree that B1 requires what malice is defined as.

[00:19:22] Speaker 00:
There's a couple issues right there.

[00:19:23] Speaker 00:
So first of all, Brackens is really the go-to case that explains why there was no need for malice in B as opposed to A and C. What's the California definition of malice?

[00:19:35] Speaker 00:
The definition includes vex to vex, harm, annoy, and otherwise cause injury, and also the malice specific to the statute, which is the interference with the, you know, the administration of justice.

[00:19:47] Speaker 03:
Right.

[00:19:47] Speaker 03:
And so you need not show an intent to interfere with the administration of justice under California law to have a B-1 violation, right?

[00:19:59] Speaker 00:
Your Honor, see, that's what's so ironic is that this offense is actually narrower.

[00:20:04] Speaker 00:
It only has the intent to interfere with the process of justice, whereas malice, as defined by the statute, includes the other intents.

[00:20:11] Speaker 03:
It says what?

[00:20:14] Speaker 03:
Doesn't it say or?

[00:20:18] Speaker 00:
Yes, so it's broader.

[00:20:20] Speaker 00:
So having malice in the statute actually makes the offense broader.

[00:20:25] Speaker 00:
It makes it broader than B. B is narrower.

[00:20:29] Speaker 00:
As Brackens points out, the legislature reasonably decided not to include malice.

[00:20:34] Speaker 00:
And that's because they thought there were more reasons why people might have a more benign interest in trying to tell someone not to go to a court proceeding, which is what A deals with.

[00:20:46] Speaker 03:
Again, help me with this.

[00:20:48] Speaker 03:
If one has the last definition of malice under California state law, which is the intent to interfere with et cetera, et cetera, then one has committed a broader crime than B1, yes?

[00:21:08] Speaker 03:
A is broader than B. A is broader than B1?

[00:21:12] Speaker 03:
Yes.

[00:21:14] Speaker 03:
But now, isn't that kind of malice precisely what is needed to constitute the federal generic crime?

[00:21:22] Speaker 03:
Put aside VEX and everything else, that last phrase strikes me as very close to what our definition of the federal generic crime is.

[00:21:31] Speaker 00:
Right, so malice is not required.

[00:21:33] Speaker 00:
The last time this court was reviewing, I just want to point out the generic definition last time, the argument was taking a different approach to try to compare this offense to the federal.

[00:21:42] Speaker 03:
The last time we were, but we were all worried about a different issue.

[00:21:45] Speaker 00:
Exactly.

[00:21:46] Speaker 00:
The corruption piece and the malice piece was a little bit different the last time around.

[00:21:51] Speaker 00:
The government's position was still that you did not need malice in the statute to demonstrate the relationship to the federal offense, but you certainly don't need it now.

[00:22:00] Speaker 00:
And that's because specific intent, the Supreme Court actually noted twice in its decision that this is exactly the type of offense that qualifies as an obstruction of justice offense.

[00:22:10] Speaker 00:
One can obstruct the wheels of justice even before the wheels have begun to move and pointed to the example of threatening a witness to keep the witness from reporting a crime to police and observe such an act is no less obstructive merely because the government has yet to catch on and begin an investigation.

[00:22:25] Speaker 00:
The second time the Supreme Court says this offense is an obstruction of justice is it notes a source for as far back as 1769 explaining without qualification that endeavoring to dissuade a witness from giving evidence was an impediment of justice.

[00:22:38] Speaker 00:
This court's prior decision found that this was a specific intent crime.

[00:22:43] Speaker 00:
And so if you just take the specific intent requirement, and it is the specific intent to interfere with someone making a report to police, that is the specific intent.

[00:22:54] Speaker 00:
So, yeah.

[00:22:57] Speaker 02:
I think if I can try to put it in my own words, and I tried to ask your colleague and kind of jumbled it, I think.

[00:23:03] Speaker 02:
I believe some of the questions you're getting are you've got two different California statutes, right?

[00:23:08] Speaker 02:
One requires malice, this one does not.

[00:23:10] Speaker 02:
But the definition of malice, the actual written definition of malice in the other one, part of that definition, that's the second half of the or, sounds a lot like the same specific intent you need here.

[00:23:24] Speaker 02:
And so I think

[00:23:26] Speaker 02:
their whole case depends upon taking that, so it's not really relying on, I mean, it's very clear this has a specific intent requirement.

[00:23:34] Speaker 02:
I don't think anybody's saying, but it's saying, yeah, but there's this other malice requirement that actually is defined, so it could be basically, it sounds a lot like it's just specific intent.

[00:23:43] Speaker 02:
since this other statute needs that, and that's extra, that's additional, then why doesn't that mean that's not required for this statute?

[00:23:50] Speaker 02:
And see, I thought that there were some California cases that had sort of dealt with that, you know, in a different context, not arguing about categorical matching and all that, but the different California cases, and basically, as state courts are prone to do sometimes, they took a statute that was kind of

[00:24:07] Speaker 02:
kind of has some challenging interpretive issues, but they interpreted it.

[00:24:12] Speaker 02:
And they said this one requires, this one, this before us, requires specific intent to actually keep somebody from not reporting.

[00:24:23] Speaker 02:
And the other one requires something extra, but it doesn't mean that this one doesn't require specific intent.

[00:24:28] Speaker 02:
I thought we had on point California case say that, and so I guess

[00:24:34] Speaker 02:
You would admit, I mean, I think these are some of the questions that Judge Hurwitz was kind of getting at, was there is this sort of like weirdness between this malice requirement that's not clear, that looks like it could just be, it's supposed to be something extra, but if it was just the second part of the or, and you don't include the VEX, et cetera, or any of that, then it's hard to see how that's much different, right?

[00:24:58] Speaker 02:
That is a challenging interpretive thing, but I'm trying to figure out if that's our job to interpret that, or if the California courts have said, we don't care, this requires specific intent, and the specific intent it requires is to keep somebody from reporting a crime.

[00:25:12] Speaker 02:
If that's true, then you end up with the question I think Judge Hurwitz was asking your colleague on the other side repeatedly.

[00:25:19] Speaker 02:
which is how is specific intent not to report a crime like not a specific intent to interfere with the process of justice.

[00:25:26] Speaker 02:
You might have all kinds of different motivations for doing that.

[00:25:29] Speaker 02:
So I'm trying to figure out like do you have an answer to the challenging part for your side of this case is that you've got this other statute, it's actually not involved in this case, but this other provision and if you give that other provision some meaning then

[00:25:45] Speaker 02:
Logically, maybe it would mean that you wouldn't have specific tenure, but we also have the fact that California courts have said you do, right?

[00:25:51] Speaker 02:
And this happens with state criminal statutes.

[00:25:55] Speaker 02:
Like you get definitive, you know, I used to work for states, right?

[00:26:00] Speaker 02:
And sometimes it doesn't seem like the best reading, but what do we do with that?

[00:26:04] Speaker 02:
I guess what do we do with that?

[00:26:05] Speaker 00:
Well, I think you have to look at two state cases that have already grappled with exactly what you're talking about because of the way that this is written.

[00:26:12] Speaker 00:
And the two cases are Brackens and Navarro.

[00:26:14] Speaker 00:
Those are the cases directly addressing the provision that is at issue before the court.

[00:26:19] Speaker 00:
And as much as we'd like to talk about subdivision A and C, and I get that they inform some meeting in some way, we are actually talking about B1 here.

[00:26:28] Speaker 00:
And so it's important to look at state case law that does address that

[00:26:32] Speaker 00:
Particular provision and how it's been interpreted by the state courts because it is for them to decide the scope of it And they have specifically found that it was totally reasonable What the legislature did by not including malice and be and as the Bracken's court stated They said for example if an employer was motivated by the desire to keep the employee at work

[00:26:52] Speaker 00:
rather than a malicious desire to thwart the administration of justice or vex or annoy or harm the employee.

[00:26:58] Speaker 00:
That would have been a reason why they may have prevented someone from going to a hearing because they had...

[00:27:04] Speaker 03:
Would that be also a violation of the federal statute?

[00:27:09] Speaker 00:
That wouldn't have the malice.

[00:27:11] Speaker 00:
That's what they were saying because it had to do with the proceeding.

[00:27:13] Speaker 03:
The malice required to violate A, my question is, if I'm an employer and I say, don't report a crime because I don't want you to miss work, have I committed the federal generic crime?

[00:27:27] Speaker 00:
That's where Navarro comes in, because there's no realistic probability of the type of offenses that don't have the specific intent.

[00:27:36] Speaker 03:
But Navarro tells us not to use our imagination, but tells us that if the language of the statute commands a result, we don't have to worry about imagination.

[00:27:49] Speaker 03:
We just look at language.

[00:27:51] Speaker 03:
Right.

[00:27:52] Speaker 03:
I'm still back at the question, I think, is vexing both Judge Van Dyke and me, and I suspect

[00:27:57] Speaker 03:
vexing Judge Moskowitz, too, but I don't want to speak for him on this, which is that we have a statute.

[00:28:03] Speaker 03:
Forget the word malice for a second.

[00:28:05] Speaker 03:
We have a statute that says you violated B1 if you've done a certain number of things.

[00:28:11] Speaker 03:
Your intent is a certain way, but you violated A if your intent includes an intent to interfere with the process of justice.

[00:28:22] Speaker 03:
Well, that's what, and now we have B1, the cases interpreting B1 would say you really don't need that to violate B1.

[00:28:32] Speaker 03:
And so I'm trying to figure out

[00:28:35] Speaker 03:
Both sides of the equation here strike me as having a disconnect.

[00:28:39] Speaker 03:
On the other side, I'm having an impossible time imagining how I can intend to keep a witness from reporting a crime without at least having some intent to keep the process of justice from moving.

[00:28:50] Speaker 03:
On your side of the case, I'm having a problem of figuring out why if intent to interfere with the process of justice is not an element of B1, we don't have a case where on the face we don't have a

[00:29:03] Speaker 03:
a categorical match.

[00:29:05] Speaker 00:
So help me with that.

[00:29:08] Speaker 00:
Subdivision A has to do with pending proceedings.

[00:29:11] Speaker 00:
It has to do with attempting or preventing to dissuade a victim or witness from giving testimony at a trial.

[00:29:19] Speaker 00:
What the legislature realized is that

[00:29:22] Speaker 00:
Because you're going to a public proceeding, first of all, there's more trauma involved with going to a type of public proceeding, facing the defendant, that there might be more reasons that people might have as wanting to protect someone under those circumstances when a proceeding is involved, that having a malice requirement would be more important.

[00:29:41] Speaker 00:
This is what the Bracken's Court specifically found.

[00:29:44] Speaker 00:
And they said there was, quote, trauma involved with a proceeding.

[00:29:48] Speaker 03:
Maybe you're not understanding my question.

[00:29:50] Speaker 03:
I perfectly understand why the legislature might want to have included a malice requirement under A. What I'm having a difficult time is figuring out, since they didn't include one under B1, and part of the malice requirement is an intent to interfere with the process of justice, why that doesn't mean B1 is somehow narrower with respect to that intent.

[00:30:16] Speaker 00:
I agree that it is narrower.

[00:30:22] Speaker 00:
Well, I think that it is narrower.

[00:30:24] Speaker 00:
I actually think if you look at this court's case in Escobar, it's kind of interesting because they were looking, it's not related in the sense that it was a CIMT, but it was looking at 136.1A.

[00:30:33] Speaker 00:
And the reason they found it wasn't a CIMT is because it included the intent to interfere with the process of justice instead of the normal malice stuff.

[00:30:42] Speaker 00:
So the very reason that it became sort of overbroad for a CIMT was the exact reason why you would find it to be an obstruction of justice crime, which I thought was... What you're saying is that the process of justice referred to in the malice requirement is what we thought the process of justice was the last time through, which was a pending case?

[00:31:05] Speaker 00:
It begins with the commission of a crime and ends with the punishment of the offender.

[00:31:09] Speaker 00:
That's the process of justice.

[00:31:10] Speaker 00:
And it starts before there's even a proceeding.

[00:31:12] Speaker 00:
As the Supreme Court noted specifically, the best interference is the one that happens at the very beginning, before the wheels of justice move.

[00:31:22] Speaker 03:
What you seem to be saying is that malice is required when there's a pending court proceeding, and that what the process of justice there means in the malice requirement, the general definition of malice, is a pending court proceeding.

[00:31:38] Speaker 03:
But that definition of malice just has no relevance at all.

[00:31:41] Speaker 00:
Well, the Bracken's court said that it's so sufficiently important that we encourage people to report crimes that there aren't going to be reasonable explanations the way that you would have.

[00:31:53] Speaker 00:
This is what the court said, that there aren't the same reasonable explanations and motivations, the benign motivations that you're talking about aren't going to be prevalent when you're just talking about reporting a crime.

[00:32:05] Speaker 00:
It's not the same as when you're doing something in a public forum.

[00:32:09] Speaker 00:
That's essentially what the Bracken's court was finding.

[00:32:11] Speaker 03:
So your position is that the malice definition adds something to the generic crime with respect to a subsection A violation?

[00:32:23] Speaker 00:
It adds an extra showing.

[00:32:25] Speaker 03:
It's often used, actually what's interesting is it's- Would a violation of subsection A be a categorical obstruction of justice?

[00:32:33] Speaker 00:
Well, that's not the issue before the court.

[00:32:36] Speaker 00:
That's why it's a hypothetical question.

[00:32:38] Speaker 00:
It is hypothetical, and I would say, you know, they previously pointed to the case Waheedi, right?

[00:32:43] Speaker 00:
Waheedi was no innocent person, by the way, who punched and smashed windows and then tried to settle something.

[00:32:49] Speaker 00:
The other side doesn't get to use the facts of the case.

[00:32:51] Speaker 00:
Well, but I'm just saying, to the extent that you think that this targets more benign motives, the fact is that, first of all, Navarro says there's no realistic probability that it's going to capture that conduct.

[00:33:07] Speaker 00:
And number two, none of the cases here show that it does capture that kind of conduct.

[00:33:12] Speaker 00:
I want to point out, none of the cases here

[00:33:14] Speaker 00:
involved when he talks about the telephone cases are actually very common with domestic violence and things like that.

[00:33:20] Speaker 00:
I mean, Flores himself says, you know, he says, my case shows that you could not have the requisite intent.

[00:33:26] Speaker 00:
I mean, his girlfriend was lying on the floor with a collapsed lung and a broken rib, and he thinks she was trying to kill him.

[00:33:33] Speaker 00:
I don't know why the facts make it clear.

[00:33:35] Speaker 00:
Well, he's trying to say they show a realistic probability.

[00:33:37] Speaker 03:
A crime requires the requisite intent or it doesn't.

[00:33:40] Speaker 03:
He could have pleaded guilty to a crime different than the actual crime he committed.

[00:33:44] Speaker 03:
He pleaded guilty to a B-1 offense.

[00:33:47] Speaker 00:
If you have the specific intent, as long as you have the specific intent, that is what's required.

[00:33:52] Speaker 00:
And to the extent that that might seem harsh, note that there is a one-year sentence requirement for this aggravated felony.

[00:33:58] Speaker 00:
So some of the aggravated felony definitions like murder, rape, sexual abuse of a minor, they don't have a sentence requirement because they're so inherently bad.

[00:34:05] Speaker 00:
These cases, the legislature understood that there might be violations that maybe you think are not as serious and maybe don't warrant this aggravated felony status, but you have to have the one-year sentence for this particular aggravated felony provision.

[00:34:19] Speaker 00:
And so that's going to weed out any of these cases that you might have in your head.

[00:34:23] Speaker 00:
The cases all before you today are some of the worst facts I've ever heard of.

[00:34:27] Speaker 00:
And so these are typical facts of this crimes.

[00:34:29] Speaker 00:
But I'm saying to the extent that there's some hypothetical idea, because I think what seems to be bothering the court is that you have a specific intent without the malice in this statute.

[00:34:40] Speaker 03:
What's troubling me in taking you over, but let me just give you a chance to respond to it, is not the hypothetical crimes I could think of or not think of.

[00:34:48] Speaker 03:
What's concerning me in this case is that we have the California court saying malice is not required to violate B1.

[00:34:57] Speaker 03:
And one of the definitions of malice sounds to me, as Judge Van Dyke suggested,

[00:35:03] Speaker 03:
pretty close to the specific intent required to commit the generic crime.

[00:35:09] Speaker 03:
So I'm trying to figure out if that specific intent is not required to violate B-1, then why does B-1 then constitute a generic crime?

[00:35:21] Speaker 00:
It just has to do with the way malice is defined in this California statute.

[00:35:25] Speaker 00:
So because they define it to be having other intents in addition to the intent to interfere with the process- They're not all required.

[00:35:33] Speaker 03:
It's an OR statute.

[00:35:35] Speaker 00:
Right.

[00:35:36] Speaker 00:
But that's why they didn't want to be as broad, because they wanted to make it—I think what they were trying to do was say, it's so important that we not find ways to discourage people to report crimes, that if you specifically intend to dissuade a witness from reporting a crime, that that is an intent to interfere with the process of justice.

[00:35:57] Speaker 00:
It's the most effective way to interfere with the process of justice.

[00:36:00] Speaker 00:
And that is what the Supreme Court said.

[00:36:02] Speaker 00:
It is the best way to interfere with the process of justice.

[00:36:06] Speaker 00:
And there was a sufficiently enough of a reason for the legislature to say it matters so much that we don't need to add on the possibilities of other vex, annoy, harm, because this is interference and this is something where, you know, we value that so much that people can come forward.

[00:36:24] Speaker 02:
Counsel, thank you for your... I do want to make sure that if Judge Moskowitz has any questions before you sit down, he gets a chance to ask them.

[00:36:31] Speaker 02:
So let's give him an opportunity here.

[00:38:02] Speaker 01:
If B1 does not have the required intent can it still be related to obstruction of justice to be included in the federal statute?

[00:38:12] Speaker 00:
I love this question because it is an offense relating to obstruction of justice.

[00:38:16] Speaker 00:
So actually that's a great point that I should have said earlier.

[00:38:19] Speaker 00:
It can because it relates to obstruction of justice and I think looking for the exact, I mean it has the specific intent to dissuade a witness and that should be enough to say that this is an offense relating to the obstruction of justice.

[00:38:36] Speaker 02:
Any follow-ups, Judge Moskowitz?

[00:38:40] Speaker 02:
Anything else?

[00:38:41] Speaker 02:
All right, well, thank you.

[00:38:42] Speaker 02:
We took you well over.

[00:38:43] Speaker 02:
We'll make sure the other side gets a chance, but why don't we put three minutes on the clock for the petitioner, and then we'll make sure Judge Moskowitz gets to ask you any questions that may proceed.

[00:39:02] Speaker 04:
Thank you.

[00:39:03] Speaker 04:
I'd like to address the hypothetical about the employer who says to his employee, I don't want you to miss work.

[00:39:10] Speaker 04:
I think the question was, would that violate the federal generic offense?

[00:39:14] Speaker 04:
And the answer is no.

[00:39:15] Speaker 04:
I think a prosecutor would be hard pressed in that case to prove to a jury, beyond a reasonable doubt, that the employer had an intent to interfere with the legal process.

[00:39:27] Speaker 03:
And I think- Why not?

[00:39:30] Speaker 03:
You agree that the legal process begins with the investigation of the crime.

[00:39:36] Speaker 04:
I think that Pugin talks about that, yes.

[00:39:39] Speaker 03:
You don't agree, but we are instructed by the Supreme Court that the legal process begins with the investigation of the crime.

[00:39:47] Speaker 03:
And he intends to keep this person from talking to

[00:39:52] Speaker 03:
the police.

[00:39:53] Speaker 03:
He has the specific intent of keeping this person from talking to the police.

[00:39:58] Speaker 03:
He may also benefit thereby by keeping the guy at work and he may have other motivations.

[00:40:02] Speaker 03:
But why isn't that a specific intent to interfere with the very beginnings of the process of justice?

[00:40:10] Speaker 04:
I think it's the distinction between an inference that a jury could reach and an element

[00:40:16] Speaker 03:
of the crime.

[00:40:25] Speaker 03:
this witness from reporting to the police.

[00:40:27] Speaker 04:
Yes, and that's, I think this is a helpful way to think about this issue.

[00:40:32] Speaker 04:
If every time a prosecutor proved that a defendant intended to dissuade, they had also proved an intent to interfere with the process of justice, then prosecutors would prosecute under C.

[00:40:46] Speaker 04:
Subsection C, which requires malice, instead of B, particularly in cases like the cases before the court where there are elements of violence.

[00:40:55] Speaker 04:
There are elements that would trigger the escalator clauses in Subdivision C of Section 136.

[00:41:00] Speaker 04:
If those two, if every time you proved an intent to dissuade, you would also prove an intent to interfere, then we wouldn't have these Subsection B cases.

[00:41:10] Speaker 04:
We would have Subsection C cases.

[00:41:12] Speaker 03:
Does the record tell us what

[00:41:14] Speaker 03:
section your clients were originally charged under?

[00:41:17] Speaker 04:
Yes, my client was charged.

[00:41:19] Speaker 03:
The information only charges Subdivision B. Is that true of all the... I thought, looking at this, that at least one of them was originally charged under C. Am I wrong?

[00:41:30] Speaker 03:
It doesn't really matter.

[00:41:32] Speaker 03:
I guess my point was sometimes you get a plea bargain, as each of these defendants did, and you get charged with not as much as the prosecutor could have charged.

[00:41:41] Speaker 04:
And I looked at that, Your Honor, at least for Mr. Flores.

[00:41:45] Speaker 04:
And in his case, the information charges B, he pled to B.

[00:41:48] Speaker 04:
And so I think it is important to consider the California statutory scheme.

[00:41:54] Speaker 04:
If every time a prosecutor had proved the intent for B, he had also proved malice and intent to interfere with the orderly administration of justice, then we would see charges for violations of C in these records.

[00:42:07] Speaker 04:
And we see B. That shows that California prosecutors and the courts that accept these pleas and affirm these convictions

[00:42:14] Speaker 04:
understand the distinction between the intent required to dissuade and the intent to interfere in the orderly administration of justice and that there's a distinction between these intents and that is the categorical mismatch.

[00:42:26] Speaker 03:
Is the intent to interfere with the orderly administration of justice

[00:42:32] Speaker 03:
You're equating here that definition with a federal generic definition, which is an offense relating to the obstruction of justice, which seems to me to be, as Judge Moskowitz's question suggested, slightly different.

[00:42:48] Speaker 04:
And if I could address that question.

[00:42:50] Speaker 04:
The Supreme Court said that this generic offense requires an intent to interfere with the legal process.

[00:42:58] Speaker 04:
The generic offense is an aggravated felony relating to obstruction of justice.

[00:43:06] Speaker 04:
So this relating to language doesn't change the requirement of an intent to interfere with the legal process.

[00:43:13] Speaker 04:
It doesn't expand the scope of a categorical match because that requirement of an intent to interfere with the legal process applies to the full generic offense, the full language relating to obstruction of justice.

[00:43:27] Speaker 04:
And that's what doesn't match.

[00:43:29] Speaker 04:
And in response to the question about whether this idea of the administration of justice is the same as the legal process, the legislative history for section 136, which is discussed in the California case law, defined that term very broadly and said it could apply to pre-arrest conduct.

[00:43:49] Speaker 04:
Like, for example, and this is from Wohiti,

[00:43:54] Speaker 04:
attempts to settle misdemeanor violations among the parties without reporting them to the police.

[00:43:59] Speaker 04:
This is the legislative history for subdivision A, which does require malice.

[00:44:05] Speaker 04:
It could also apply to a person arrested by a shopkeeper who, sorry, a civilian,

[00:44:14] Speaker 04:
who was arrested by a shopkeeper and tried to talk the shopkeeper out of calling the police.

[00:44:19] Speaker 04:
So this California phrase, malice, is broad and it does apply to pre-arrest conduct.

[00:44:25] Speaker 04:
It does apply to preventing reports to the police.

[00:44:28] Speaker 04:
It does reach the type of conduct that we've been discussing as being covered by the federal crime.

[00:44:34] Speaker 04:
And it's not coextensive with the intent required by B. If it were, then we would have charges and convictions under C

[00:44:42] Speaker 04:
which requires malice, in addition to B, they would charge both.

[00:44:46] Speaker 02:
Prosecutors would charge both because they could prove two for one, and that's not the case.

[00:44:57] Speaker 02:
they're interchangeable almost.

[00:44:59] Speaker 02:
But overlap would be, except for some things that you could charge under B, you could charge under one of the other provisions.

[00:45:05] Speaker 04:
But for the overlap to be material to the categorical analysis, the overlap would have to mean that the intent for B amounted to overlap sufficiently to be an intent to interfere with the orderly administration of justice.

[00:45:17] Speaker 04:
So for that overlap to be material to the categorical analysis, it would have to be collapse B and C in terms of the mens rea.

[00:45:25] Speaker 02:
It would have to be collapsed as far as one part, the second part of the oar, right, but not the other part.

[00:45:31] Speaker 02:
In other words, there would be overlap.

[00:45:33] Speaker 02:
Maybe you could say one was subsumed in the other, but one is broader than the other, the government's position.

[00:45:39] Speaker 02:
The one that has malice is broader.

[00:45:42] Speaker 04:
If you look at the cases before, in this record, the Flores case, the Brackens case, in those cases, there were elements that justified an elevation to C, but the prosecutors didn't seek convictions.

[00:45:56] Speaker 04:
It wasn't charged.

[00:45:56] Speaker 03:
It wasn't charged and sought.

[00:45:58] Speaker 03:
I'm not sure we do a categorical analysis by a holistic prediction of how prosecutors would act.

[00:46:05] Speaker 03:
What we may have here,

[00:46:09] Speaker 03:
is just a California, then this is a problem all the time.

[00:46:13] Speaker 03:
The statutes are not designed with the categorical approach in mind.

[00:46:17] Speaker 03:
They're designed with something else in mind, as you say.

[00:46:20] Speaker 03:
They may cover things that don't even involve cases that have already begun.

[00:46:26] Speaker 03:
and B, may only cover cases that already have begun.

[00:46:30] Speaker 03:
So I'm just not sure what to read out of the fact that California has designed two statutes that are hard to read together.

[00:46:38] Speaker 03:
What we need to figure out is whether the one that your clients were convicted under requires the specific intent required to violate the federal generic statute.

[00:46:49] Speaker 04:
Yes, that is the categorical analysis.

[00:46:51] Speaker 03:
That's why we're having some difficulty on both sides in this case.

[00:46:54] Speaker 04:
But I would just close by saying, Your Honor, that the government can't have it both ways.

[00:46:59] Speaker 04:
It can't collect convictions under Subdivision B without being required to prove an intent

[00:47:05] Speaker 04:
to interfere with the orderly administration of justice and then treat those same convictions as though they required that intent for purposes of removability.

[00:47:15] Speaker 04:
That is having your cake and eating it too.

[00:47:17] Speaker 04:
It's not what the statute says and it would be a violation.

[00:47:21] Speaker 04:
There's a categorical mismatch because there's a fundamental difference between the intent required by the California statute and the intent required by the generic aggravated felony.

[00:47:33] Speaker 02:
Thank you, counsel.

[00:47:34] Speaker 02:
Let me make sure that Judge Moskowitz has any follow-up question here.

[00:47:37] Speaker 02:
It looks like he does.

[00:47:38] Speaker 01:
I think he answered my question about relating to... You think you already got the answer?

[00:47:44] Speaker 02:
All right.

[00:47:45] Speaker 02:
Do either of my colleagues have any more questions?

[00:47:48] Speaker 02:
Well, thank you both.

[00:47:49] Speaker 02:
We took you both over, and we really appreciate you making this trip out here.

[00:47:52] Speaker 02:
And this case will be submitted as of today.

[00:47:57] Speaker 02:
Thank you.

[00:47:58] Speaker 02:
Thank you.