Navarro-Lopez, No. 04-70345 (9-19-07) (en banc). The Ninth Circuit issued an en banc decision in an immigration case today holding that, under the Taylor categorical approach, California's "accessory after the fact" statute is categorically NOT a crime involving moral turpitude. Pregerson wrote most of the majority opinion. He is joined by a concurrence (Reinhardt). There are dissents by Judge Tallman (joined by O'Scannlain, Rawlison, Clifton, and Bybee) and by Judge Bea (joined also by O'Scannlain).

The holding that "accessory after the fact" is not a CIMT is quite simple: there is no element of any type or moral turpidinous behavior. That is, there is no requirement that the act be base or depraved.

The majority discusses what is a CIMT. CIMT requires behavior that is (1) vile, base and depraved and (2) violates societal moral standards. The majority opinion goes on to state, a crime involving fraud is not necessarily a CIMT, because someone can intentionally commit fraud, but that conduct is not necessarily vile, base or depraved, nor shocking to society's conscience, though it's illegal. The majority gives the hypothetical example of a welfare mother signing her deceased father's disability check to feed her children. It's illegal, but neither vile, based or depraved, so it would not be CIMT.

Reinhardt, concurring, parts company with Pregerson over whether fraud is a categorical CIMT or whether it should be examined. Reinhardt believes the issue is foreclosed that it is under 9th Circuit en banc precedent.

One commentator (AFPD Brian Rademacher) points out the majority indicates that if a crime is categorically not a predicate offense, then the modified approach can not be used to prove that the prior offense qualifies. If a state statute does not include one of the elements of the generic definition of the federal predicate anywhere (i.e., in none of the subsections), then it can never qualify as a predicate offense. This unlike the situation where the state statute is categorically overbroad, i.e., one of its subsections does include the necessary elements, but other subsections do not. In this situation, the modified approach can be used to fill in the missing element needed for the generic definition. The 9th is in line with the 5th (yes, the 5th!) on this.

The dissents argue that accessory is a categorical CIMT because it is either a variation of fraud, and the precedent of the 9th would support this, or it is base and depraved to hide a felon.

Brown v. Ornoski, No. 05-99008 (9-19-07). The 9th (Hawkins joined by Thomas and Bea) affirm a denial of a petition in a capital case. The petitioner failed to show that IAC took place at sentencing with the calling of an expert psychiatrist who had both good and not-so-good things to say about the then-defendant. The 9th did the AEDPA analysis in deferring to the state supreme court, and in this case, the expert gave a lot of good, while trying to humanize some of the bad in explaining the rape/murder. There was also no IAC in the investigation and presentation of mitigation.