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The U.S. Supreme Court on Jan. 17 issued the following opinion: The justices ruled unanimously that an alien living in the United States who is convicted of a crime for which a conviction could be issued for “aiding and abetting” may be deported for having committed a theft offense. Gonzales v. Duenas-Alvarez, No. 05-1629. Luis Duenas-Alvarez, a permanent resident alien, was convicted of violating Calif. Veh. Code � 10851(a), under which “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner . . . or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.” The government sought to remove Duenas-Alvarez from the United States as an alien convicted of “a theft offense . . . for which the term of imprisonment [is] at least one year.” The government cited the U.S. Supreme Court’s 1990 ruling, Taylor v. U.S., 495 U.S. 575, which held that for sentence-enhancing purposes, a court seeking to determine whether a particular prior conviction was for generic theft should look at the state statute defining the crime of conviction, not to the facts of the particular prior case. But if, for example, state law defines theft as including crimes falling outside generic theft, the sentencing court should determine whether the jury had been required to find all the elements of the generic crime. A federal immigration judge and the Bureau of Immigration Appeals (BIA) found Duenas-Alvarez removable. The 9th U.S. Circuit Court of Appeals reversed and remanded. In its earlier 2005 decision, Penuliar v. Ashcroft, the 9th Circuit had held that the definition of “theft” in Section 10851(a) is more sweeping than generic “theft.” Generic theft, the 9th Circuit said, involves the taking or control of others’ property. However, one may “aid” or “abet” a theft without taking or controlling property. Because aiding and abetting is not a generically defined “theft” crime, it falls outside the scope of the term “theft” in the immigration statute. The justices reversed, holding that “theft offense” under federal law includes the crime of “aiding and abetting” a theft offense. Writing on behalf of the court, Justice Stephen G. Breyer said that since state and federal criminal law treats principals and aiders and abettors alike, “the generic sense in which” the term “theft” is used in the criminal codes of most states covers “aiders and abettors” as well as principals. Certiorari granted The U.S. Supreme Court on Jan. 12 added four cases to its docket: The justices will examine the statute that allows state-filed cases to be removed to federal court. Lisa Watson and Loretta Lawson filed a class action against Philip Morris Cos. Inc. in Arkansas state court, arguing that the tobacco company had violated state deceptive practices laws in their marketing and promotion of Cambridge Lights and Marlboro Lights cigarettes. Philip Morris had the case removed to federal court. The district court denied the plaintiffs’ request to remand back to state court because the Federal Trade Commission’s involvement in regulating the tobacco industry’s advertising allowed for removal. The 8th Circuit affirmed. The plaintiffs are asking whether a private actor like Philip Morris, which merely complies with federal regulations, is a “person acting under a federal officer” who can remove a case to federal court under 28 U.S.C. 1442(a)(1). Watson v. Philip Morris Cos. Inc., No. 05-1284. The justices will review parts of the 1996 Taxpayers Bill of Rights that allow the secretary of the treasury to abate assessed interest in cases involving “unreasonable error or delay” or an Internal Revenue Service employee’s “ministerial or managerial act.” In 1996, the IRS assessed interest and penalties to Pamela and John Hinck’s 1986 tax filing, which had been under investigation. The IRS refused to abate the assessment, so the Hincks sued in Federal Claims Court to have the assessment removed. The court dismissed the case for lack of jurisdiction, and the Federal Circuit affirmed, ruling that only the Tax Court has jurisdiction to review IRS decisions not to abate the assessment of interest. Hinck v. U.S., No. 06-376. The court will examine the award of attorney fees in a case from an unpublished 11th Circuit opinion. Affirming a Florida federal court, the 11th Circuit held that the grant of a preliminary injunction to a state park service, allowing them to bar the plaintiffs from enacting a nude peace symbol on a public beach, is “relief on the merits,” entitling the service as the prevailing party to the award of attorney fees. However, the 4th Circuit has said that preliminary injunctive relief is not relief on the merits. Struhs v. Wyner, No. 06-531. In a death penalty case, the justices will consider whether the 9th Circuit erred by not deferring to the state trial judge’s observations about a prospective juror’s views on the death penalty during voir dire. In Cal Brown’s trial for rape, torture and murder, the trial court granted the prosecution’s motion to dismiss a juror who said he could impose the death penalty in “severe situations,” but felt less comfortable doing so if the defendant was “temporarily insane.” The Washington Supreme Court upheld Brown’s conviction and punishment, and a federal court denied his habeas corpus petition. The 9th Circuit reversed, saying the juror’s views on the death penalty did not justify dismissing him for cause. Uttecht v. Brown, No. 06-413.

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