Robbins Geller Attorneys Make an Impact with Pro Bono Work

October 26, 2012

For 20 years, Robbins Geller partner Sanford (Sandy) Svetcov has served as the Northern California and Hawaii District Coordinator for the United States Court of Appeals for the Ninth Circuit’s Pro Bono program. Beginning in 1993 under Chief Judge John Clifford Wallace the pro bono program allows judges to request briefing from pro bono amicus curiae counsel if they determine that such briefing would benefit the court’s review of the issues in a case. Going into its 20th year, the pro bono program now has over 150 attorneys from across California on its list of volunteers.

In 2010, Christopher M. Wood, an associate in Robbins Geller’s San Francisco office, assisted by Svetcov, volunteered to provide amicus briefing in an action involving novel questions regarding the intersection of California criminal law and federal immigration law.

The case, Gonzalez-Leyton v. Holder, 07-74946 (9th Cir.), was an appeal from a Board of Immigration Appeals decision to deport the petitioner for committing a crime of violence as defined by 18 U.S.C. § 16. The petitioner pled no contest to a violation of California Penal Code section 417(a)(1), which states that “[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor.” However, consistent with a practice in California, the prosecutor had substituted the word “and” for the word “or” when describing the statutory violation in the charging document.

The critical question presented in the appeal was whether, under California law, a guilty or no contest plea to a conjunctively charged indictment admits each conjunctively charged allegation, or only enough elements to support a conviction. If the no contest plea admitted each allegation, the violation would constitute a crime of violence. However, if the no contest plea only admitted enough elements to support a conviction, it could not be said that the petitioner committed a crime of violence. This is because the statute is so broad that the petitioner could have violated the statute simply by rudely picking up a knife in another person’s presence, even if the other person was unaware of such rude display.

Unfortunately, there were no easy answers to this critical question. For decades, various state and federal courts of appeals in California had come to opposite conclusions regarding this issue. Svetcov and Wood submitted two briefs explaining that, based on over 145 years of California precedent, the Ninth Circuit should hold that a no contest plea standing alone constituted an admission of enough elements to support a conviction and nothing more. In addition, they consulted with, and provided their briefing to, attorneys from the Federal Defenders’ office in San Diego, who were litigating other actions in the Ninth Circuit involving very similar issues.

After amicus briefing had been completed, the petitioner’s position got a critical boost. On January 28, 2011, a separate panel of the Ninth Circuit issued an opinion, Young v. Holder, 634 F.3d 1014 (9th Cir. 2011). In Young, the panel adopted the reasoning advanced by the petitioner, holding that “when Young pled guilty, he admitted that he did at least one of the acts required to convict him under the statute, not that he did them all.” Id. at 1023. After Young was published, amicus counsel submitted an additional brief explaining that, pursuant to Young, the Board of Immigration Appeals’ decision must be reversed. Unsatisfied with the panel’s decision in Young, however, the government sought en banc review. Svetcov and Wood again consulted with the Federal Defenders’ office in San Diego, which was providing amicus briefing to the court in Young.

On September 17, 2012, an en banc panel of the Ninth Circuit issued an order recognizing its prior inconsistent positions on this question and holding that “a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant’s conviction.” Young v. Holder, 697 F.3d 976, 979 (9th Cir. 2012). Shortly thereafter, on October 26, 2012, the Ninth Circuit issued an order granting Gonzalez-Leyton’s petition and remanding the case back to the Board of Immigration Appeals. “It was a privilege to be able to assist the court in resolving this long-unsettled question of law,” said Svetcov.

While Svetcov is retiring from the position of District Coordinator for Northern California and Hawaii, the title will not be moving far. Robbins Geller partner Susan Alexander will be taking over for Svetcov later this year. “I look forward to continuing the important work that Sandy has contributed to the program over the last 20 years and to being of service to the court,” said Alexander.

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