FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MCKENZY ALII ALFRED, No. 19-72903
Petitioner,
Agency No.
v. A215-565-401
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc September 8, 2022
Pasadena, California
Filed March 30, 2023
Before: Mary H. Murguia, Chief Judge, and Sidney R.
Thomas, M. Margaret McKeown, Jay S. Bybee, Consuelo
M. Callahan, Ryan D. Nelson, Eric D. Miller, Bridget S.
Bade, Daniel P. Collins, Kenneth K. Lee and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Collins;
Concurrence in the Judgment by Judge Callahan;
Dissent by Judge McKeown;
Dissent by Judge VanDyke
2 ALFRED V. GARLAND
SUMMARY *
Immigration
Denying McKenzy Alii Alfred’s petition for review of a
Board of Immigration Appeals’ decision that he was
removable for having been convicted of an aggravated
felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the en
banc court held that second-degree robbery under Wash.
Rev. Code § 9A.56.190 is a categorical match with generic
theft and is therefore a theft offense under § 1101(a)(43)(G).
Alfred was convicted under Wash. Rev. Code
§ 9A.56.190 and served a fifteen-month prison sentence.
The BIA concluded that he was removable for having
committed an aggravated felony under 8 U.S.C. §
1101(a)(43)(G), which describes “a theft offense (including
receipt of stolen property) or burglary offense for which the
term of imprisonment is at least one year.” A panel of this
court granted Alfred’s petition for review based on United
States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in
which this court held that: (1) because aiding and abetting
liability is implicit in every criminal charge, a state’s aiding
and abetting statute must be folded into the analysis under
the categorical approach, and (2) Washington’s aiding and
abetting statute is broader than its generic equivalent. Based
on Valdivia-Flores, the Alfred panel found that
Washington’s robbery statute is a mismatch to its generic
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALFRED V. GARLAND 3
equivalent such that the Washington statute was not an
aggravated felony, and therefore, Alfred was not removable.
The en banc court explained that in United States v.
Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), this court
concluded that a conviction for Washington second-degree
robbery, where accompanied by a sentence of at least one
year, qualifies as a theft aggravated felony. Neither Alfred
nor the government questioned that decision; rather, the
parties disagreed over whether and how Washington’s
accomplice liability statute affected Alfred’s robbery
conviction.
A plurality of the en banc court concluded that it was
necessary to consider Washington accomplice liability in
conducting the categorical analysis of Washington robbery.
The plurality explained that, in Valdivia-Flores, the court
relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007),
in which the Supreme Court concluded that generic theft
encompasses aiding and abetting. Noting that Duenas-
Alvarez left open the question of whether accomplice
liability should be considered when—as is the case with
Washington law—a separate statute integrates accomplice
liability, the plurality concluded this is a distinction without
a difference. The plurality explained that nothing confines
the categorial analysis to a single statute of conviction, and
the Supreme Court often looks beyond the statute of
conviction to see how state courts apply a statute. The
plurality further explained that under Washington law, it is
impossible to determine whether a defendant was convicted
as a principal or accomplice without looking at the
underlying facts, but the categorical approach forbids doing
so. Because Alfred’s conviction did not establish that he
acted as a principal, the plurality concluded that it must
consider the possibility he acted as an accomplice.
4 ALFRED V. GARLAND
Therefore, the plurality concluded it must consider
accomplice liability. The plurality noted its dissenting
colleagues agreed on this point, while its concurring
colleagues disagreed.
In Subsection B of Part IV, a majority of the en banc
court held that generic accomplice liability requires a
showing that the putative accomplice intentionally aided or
abetted another in the commission of the crime. However,
because many of the jurisdictions the en banc court surveyed
had interpreted this intent requirement as encompassing both
purposeful and knowing conduct, the en banc court also
concluded that advance knowledge of the crime is sufficient
to support a conviction for generic accomplice liability. In
so concluding, the en banc court considered four categories
of accomplice liability (including those requiring a mens rea
of intent and those requiring a mens rea of knowledge) and
detailed which jurisdictions fell into which category. The en
banc court also found helpful Rosemond v. United States,
572 U.S. 65 (2014), in which the Supreme Court, throughout
its opinion, equated intent with “advance knowledge.”
Further, the en banc court noted that the blurred line between
intent and knowledge is apparent through state law as
well. However, the en banc court noted that its holding does
not mean that all statutes that fall under the generic definition
are to be interpreted the same way, as doing so would ignore
the jurisdictional distinctions described.
In Subsection C of Part IV, the majority joined the
Eleventh Circuit in concluding that Washington and generic
accomplice liability are a categorical match. The en banc
court explained that both Washington and federal generic
accomplice liability require the same standard of proof: the
accomplice must have had advance knowledge of the crime
he facilitated. In Washington, by statute, an accomplice acts
ALFRED V. GARLAND 5
“[w]ith knowledge that [the conduct] will promote or
facilitate the commission of the crime,” Wash. Rev. Code
§ 9A.08.020(3)(a), and Washington courts have held that the
state must prove a defendant acted with knowledge that he
or she was promoting or facilitating the crime eventually
charged. And the Supreme Court has interpreted common
law accomplice liability as requiring evidence that a
defendant “actively participat[ed] in a criminal venture with
full knowledge of the circumstances constituting the charged
offense.” Rosemond, 572 U.S. at 77. The en banc court saw
no significant daylight between these two standards.
In Part V, the majority of the en banc court overruled
Valdivia-Flores and, to the extent it remained good law, also
overruled United States v. Franklin, 904 F.3d 793 (9th Cir.
2018), abrogated on other grounds by Shular v. United
States, 140 S. Ct. 779 (2020), for the same reasons.
Having held that second-degree robbery under Wash.
Rev. Code § 9A.56.190 is a categorical match with generic
theft, the en banc court concluded that Alfred had been
convicted of an aggravated felony and denied his petition for
review.
Concurring in the judgment in part and dissenting in part,
Judge Collins, joined by Judges Callahan and Bade as to
Parts I and II and joined by Judge VanDyke as to Part III,
agreed that a conviction for Washington offense counts as an
aggravated felony and that Alfred was removable. However,
Judge Collins disagreed with most of the reasoning in the
lead opinion.
In Part I, Judge Collins wrote that this court held, in
Alvarado-Pineda, that a Washington conviction for second-
degree burglary, where accompanied by the required
sentence, qualifies as an aggravated felony theft offense.
6 ALFRED V. GARLAND
Judge Collins observed that the lead opinion agreed with
Alvarado-Pineda on this point, and that the parties had not
questioned Alvarado-Pineda. In Judge Collins’ view, that
should be the end of the inquiry. In Part II, Judge Collins
observed that his analysis (applying Alvarado-Pineda
without considering accomplice liability) was contrary to
Valdivia-Flores, but stated that he would overrule Valdivia-
Flores to the extent that it requires a comparison of state and
federal aiding and abetting theories. Judge Collins
concluded that the requirements of aiding and abetting
liability do not qualify as “elements” of the underlying
offense for purposes of the categorical analysis and that the
categorical approach’s “elements-only inquiry” requires the
court to disregard such non-elements. In Part III, Judge
Collins noted that, in concluding that Washington aiding and
abetting law matches its federal analog, the majority made
several statements about the scope of federal aiding and
abetting law under 8 U.S.C. § 2 that are contrary to well-
settled authority.
Concurring in the judgment, Judge Callahan, joined by
Judge Bade, wrote that because the court need not consider
aiding and abetting liability, she concurred in Sections I and
II of Judge Collins’ concurrence in part and dissent in
part. However, because by the vote of the majority of the en
banc panel aiding and abetting liability remained before the
court, Judge Callahan also concurred in subsections B and C
of Section IV and Section V of Judge Bybee’s opinion and
agreed that Washington’s aiding and abetting law is not
overbroad.
Dissenting, Judge McKeown, joined by Chief Judge
Murguia and Judges S.R. Thomas and VanDyke, agreed
with the majority that the court must compare the state
statute to the federal generic definition of the offense. Judge
ALFRED V. GARLAND 7
McKeown also agreed that because Washington’s statutory
scheme incorporates accomplice liability into all crimes, the
court must consider accomplice liability in the categorical
analysis of Washington second-degree robbery.
However, Judge McKeown parted ways with the
majority in two significant respects. First, she differed on
the generic definition of accomplice liability, explaining that
a close read of the relevant sources reveals that generic
accomplice liability requires a mental state of purpose,
which is different than knowledge. Second, Judge
McKeown disagreed on whether Washington’s second-
degree robbery statute is a categorical match with the generic
theft offense, explaining that Washington accomplice
liability requires a mental state of knowledge, which is lower
than purpose. Judge McKeown would grant Alfred’s
petition for review.
Dissenting, Judge VanDyke wrote that while he would
have liked to join Judge Bybee’s decision, he agreed with
Judge Collins and his dissenting colleagues that the analysis
therein incorrectly elides the distinction between the mental
states of knowledge and purpose to find a categorical match
in this case. Judge VanDyke further wrote that while the
approach taken by Judge Collins had a lot to commend it as
an original matter, he also could not join it entirely because
he did not believe Judge Collins’ approach was ultimately
reconcilable with what the Supreme Court actually did in
Duenas-Alvarez.
8 ALFRED V. GARLAND
COUNSEL
Aaron Korthuis (argued), Matt Adams, and Leila Kang,
Northwest Immigrant Rights Project, Seattle, Washington;
Alison Hollinz and Christopher P. Stanislowski, Northwest
Immigrant Rights Project, Tacoma, Seattle; for Petitioner.
Andrew C. MacLachlan (argued), Bryan S. Beier, and Zoe
J. Heller, Senior Litigation Counsel; Jaclyn E. Shea, Trial
Attorney; John W. Blakeley, Assistant Director; Joseph H.
Hunt, Assistant Attorney General; Brian M. Boynton,
Principal Deputy Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Kara Hartzler and Vincent Brunkow, Assistant Federal
Public Defenders, Federal Defenders of San Diego Inc., San
Diego, California, for Amicus Curiae Ninth Circuit Federal
Public and Community Defenders.
ALFRED V. GARLAND 9
OPINION
BYBEE, Circuit Judge, announced the judgment of the
court, in which CALLAHAN, R. NELSON, MILLER,
BADE, COLLINS, and LEE, Circuit Judges, concur; and
delivered an opinion, in which R. NELSON, MILLER, and
LEE, Circuit Judges, concur, and in which CALLAHAN and
BADE, Circuit Judges, concur as to Subsections B and C of
Part IV and Part V:
Petitioner McKenzy Alii Alfred is a noncitizen who was
convicted of robbery in Washington. After Alfred finished
a fifteen-month prison sentence, the government initiated
removal proceedings against him. The Board of
Immigration Appeals (“BIA”) found Alfred removable for
having committed an aggravated felony.
Alfred petitioned for review, and the panel granted relief
based on our prior holding in United States v. Valdivia-
Flores, 876 F.3d 1201 (9th Cir. 2017). In that case we held
that Washington’s accomplice liability statute was “implicit
. . . in every criminal charge” and categorically “broader than
its federal analogue.” Id. at 1207, 1208. The government
petitioned for rehearing en banc, arguing that Valdivia-
Flores and the panel decision were incorrect and in direct
conflict with a decision of the Eleventh Circuit, Bourtzakis
v. United States Attorney General, 940 F.3d 616 (11th Cir.
2019). We granted the petition for rehearing en banc; we
now overrule Valdivia-Flores and deny Alfred’s petition for
review.
10 ALFRED V. GARLAND
I. BACKGROUND
A. Factual History
Alfred is a citizen of the Republic of Palau. He lawfully
entered the United States in 2011 as a noncitizen pursuant to
the Compact of Free Association. On February 20, 2018,
Alfred went on a one-man crime spree in which he attempted
to rob a credit union, successfully robbed a coffee stand, and
attempted to steal a car. Police apprehended him shortly
thereafter.
After his indictment, Alfred pleaded guilty to one count
of second-degree robbery and two counts of attempted
second-degree robbery. He was given a fifteen-month
sentence for each count, with the sentences to be served
concurrently.
B. Procedural History
Shortly after Alfred was released from prison, the
Department of Homeland Security (“DHS”) initiated
removal proceedings against him. The Notice to Appear
charged Alfred as removable for having been convicted of
an aggravated felony, a crime of moral turpitude, and an
aggravated felony crime of violence.
Before the immigration judge (“IJ”), Alfred argued that
the statute of conviction for robbery in Washington, Wash.
Rev. Code § 9A.56.190, was overbroad under the categorical
approach. The IJ rejected this argument, relying on United
States v. Alvarado-Pineda, 774 F.3d 1198, 1203 (9th Cir.
2014), in which we held that “a conviction for Washington
second-degree robbery, where accompanied by a sentence of
at least one year, qualifies as an ‘aggravated felony’ under 8
U.S.C. § 1101(a)(43)(G).” As a result, the IJ ordered
Alfred’s removal, for commission of both an aggravated
ALFRED V. GARLAND 11
felony and a crime involving moral turpitude. The Board of
Immigration Appeals affirmed the IJ’s finding that Alfred
had committed an aggravated felony but declined to address
whether Alfred was removable on other grounds.
Alfred petitioned for review. The panel found that our
precedent, namely Valdivia-Flores, compelled it to grant
Alfred’s petition. See Alfred v. Garland, 13 F.4th 980, 987
(9th Cir. 2021) (“[I]n this case, our analysis begins and ends
with Valdivia-Flores.”). Sitting by designation, Judge
Morrison C. England, who authored the majority opinion,
concurred specially. 1 Judge Rawlinson concurred in the
result. 2 In Valdivia-Flores, we made two key holdings: (1)
because aiding and abetting liability is implicit in every
criminal charge, a state’s aiding and abetting statute must be
folded into our analysis under the categorical approach, and
(2) Washington’s aiding and abetting statute is broader than
its generic equivalent. Valdivia-Flores, 876 F.3d at 1207–
09. Based on these holdings, the Alfred panel found that
Washington’s robbery statute is a categorical mismatch to its
1
Judge England, joined by Judge Bybee, criticized the categorical
approach for requiring us to parse statutes to answer irrelevant questions.
In this case, “the record contains not even a hint that [Alfred] might have
pled guilty as an accomplice. In fact, quite the opposite, he very clearly
acted alone. . . . We are engaging in an accomplice liability analysis that
in any other context would be utterly irrelevant.” Alfred, 13 F.4th at 988
(England, J., specially concurring).
2
Judge Rawlinson noted that her concurrence was compelled by
Valdivia-Flores, in which she dissented. Id. at 989 (Rawlinson, J.,
concurring in the result); Valdivia-Flores, 876 F.3d at 1211–14
(Rawlinson, J., dissenting). She too criticized the categorical approach.
Alfred, 13 F.4th at 990 (“I guess when it comes to application of the
Supreme Court’s contrived categorical approach, in the words of my
dearly departed Mama Louise: common sense ain’t all that common.”).
12 ALFRED V. GARLAND
generic equivalent. 13 F.4th at 986–87. Accordingly, the
panel found that second-degree robbery was not an
aggravated felony for removal purposes and that, as a result,
Alfred was not removable.
The government petitioned for rehearing en banc, asking
us to overrule Valdivia-Flores. We granted the government’s
petition. Alfred v. Garland, 35 F.4th 1218 (9th Cir. 2022).
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252, and we
review the BIA’s determinations of law de novo. Vitug v.
Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). “[W]hether an
offense is an aggravated felony for removal purposes is a
question of law.” Chavez-Solis v. Lynch, 803 F.3d 1004,
1006 (9th Cir. 2015) (quoting Chuen Piu Kwong v. Holder,
671 F.3d 872, 876 (9th Cir. 2011)).
III. THE CATEGORICAL APPROACH
Under the Immigration and Nationality Act (“INA”), the
government may order the removal of noncitizens who have
committed crimes classified as “aggravated felonies.” 8
U.S.C. § 1227(a)(2)(A)(iii); see also Moncrieffe v. Holder,
569 U.S. 184, 187 (2013). The INA defines aggravated
felonies with a list of offenses, including “a theft offense
(including receipt of stolen property) or burglary offense for
which the term of imprisonment is at least one year.” 8
U.S.C. § 1101(a)(43)(G).
The INA specifies “conviction, not conduct, as the
trigger for immigration consequences.” Mellouli v. Lynch,
575 U.S. 798, 806 (2015). As a result, the Supreme Court
has instructed us to “employ a categorical approach by
looking to the statute . . . of conviction, rather than to the
specific facts underlying the crime.” Esquivel-Quintana v.
ALFRED V. GARLAND 13
Sessions, 581 U.S. 385, 389 (2017) (quoting Kawashima v.
Holder, 565 U.S. 478, 483 (2012)). The Court has applied
this categorical approach in “several statutory contexts,”
including the Armed Career Criminal Act (ACCA). Borden
v. United States, 141 S. Ct. 1817, 1822 (2021) (plurality
opinion).
The categorical approach asks us to determine “whether
‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ federal definition of a
corresponding aggravated felony.” Moncrieffe, 569 U.S. at
190 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
185–87 (2007)). To do so, we “compare the elements of the
crime of conviction with the elements of the ‘generic’
version of the listed offense—i.e., the offense as commonly
understood.” Mathis v. United States, 579 U.S. 500, 503
(2016). “[I]f the statute sweeps more broadly than the
generic crime, a conviction under that law cannot count as
an [aggravated felony], even if the defendant actually
committed the offense in its generic form.” Descamps v.
United States, 570 U.S. 254, 261 (2013).
In the case before us, the BIA found that Alfred had been
convicted of a generic theft offense under 8 U.S.C. §
1101(a)(43)(G). Therefore, under the categorical approach
we must determine whether the Washington robbery statute
under which Alfred was convicted criminalizes conduct that
falls outside the generic definition of theft.
We answered this question in Alvarado-Pineda. There,
we held that “[a] comparison of the elements of the
[Washington] statute to the elements of generic theft makes
clear that the full range of conduct criminalized by
Washington second-degree robbery falls within the meaning
of generic theft.” Alvarado-Pineda, 774 F.3d at 1203
14 ALFRED V. GARLAND
(internal quotation marks omitted). We “conclude[d] that a
conviction for Washington second-degree robbery, where
accompanied by a sentence of at least one year, qualifies as
an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(G).”
Id. Neither Alfred nor the government has questioned the
correctness of that decision. Rather, following our decision
in Valdivia-Flores, the parties disagree over whether and
how Washington’s accomplice liability statute affects
Alfred’s robbery conviction. We thus turn to those
questions.
IV. ACCOMPLICE LIABILITY
A. Whether Considering Accomplice Liability Is Necessary
1. Analysis
In Valdivia-Flores, we applied the categorical approach
to Washington’s aiding and abetting statute before looking
at the statute of conviction. 876 F.3d at 1207. The
government argues that doing so was incorrect. In taking up
the question of accomplice liability in Valdivia-Flores, we
relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).
In Duenas-Alvarez, the Supreme Court reviewed our
application of the categorical approach to Cal. Veh. Code §
10851, which criminalizes vehicle theft. 549 U.S. at 187.
That statute punishes not only “[a]ny person who drives or
takes a vehicle not his or her own,” but also “any person who
is a party or an accessory to or an accomplice in the driving
or unauthorized taking or stealing.” Cal. Veh. Code §
10851(a) (emphasis added). We had held that the statute’s
reference to accomplice liability made it overbroad,
reasoning that aiding and abetting theft does not necessarily
require a defendant to commit theft himself. Penuliar v.
Ashcroft, 395 F.3d 1037, 1044–45 (9th Cir. 2005), rev’d by
Duenas-Alvarez, 549 U.S. 183.
ALFRED V. GARLAND 15
The Supreme Court disagreed. First, it observed that “all
States and the Federal Government” had “expressly
abrogated the distinction” between those “who actually
committed the crime in question” and aiders and abettors.
Duenas-Alvarez, 549 U.S. at 189–90 (internal quotation
marks omitted). Thus, the Court concluded that generic theft
encompasses the aiding and abetting of theft. Id. Next, the
Court addressed whether California’s accomplice liability
scheme was “special,” such that it would allow California to
penalize “crime that falls outside the generic definition of
‘theft.’” Id. at 190–94. The Court found no such distinction.
Id. at 194.
Duenas-Alvarez left open the question of whether
accomplice liability should be considered when a separate
statute integrates accomplice liability into the statute of
conviction. Such is the case here. Unlike the vehicle code
at issue in Duenas-Alvarez, Washington’s robbery statute
does not expressly refer to aiding and abetting. See Wash.
Rev. Code § 9A.56.190. Instead, a separate statute, Wash.
Rev. Code § 9A.08.020(3), incorporates accomplice liability
into all Washington crimes.
We hold that this is a distinction without a difference.
The categorical approach is “[r]ooted in Congress’
specification of conviction . . . as the trigger for immigration
consequences.” Mellouli, 575 U.S. at 806. Though the
statute of conviction is inextricably tied to the defendant’s
conviction, nothing confines the categorical analysis to a
single statute. On the contrary, the Supreme Court has
looked to statutes other than the statute of conviction to
understand what a conviction may entail. See, e.g., Mathis,
579 U.S. at 507; Taylor v. United States, 495 U.S. 575, 591–
92 (1990). Moreover, in defining the elements of a
conviction, the Court often looks beyond the statute of
16 ALFRED V. GARLAND
conviction to see how state courts have applied the statute.
See Mathis, 579 U.S. at 507; Johnson v. United States, 559
U.S. 133, 138 (2010); Duenas-Alvarez, 549 U.S. at 190–94.
Although the statute of conviction is the center of our
analysis, we cannot blind ourselves to sources that contribute
to its meaning. We discern no relevant difference between
(1) a statute that defines a crime and expressly punishes
aiding and abetting and (2) a statute that defines a crime and
is subject to another statute that expressly punishes aiding
and abetting all crimes, including the particular crime in
question.
A closer look at Washington law underscores why
consideration of accomplice liability is important here.
Washington, like the United States and all other states, has
eliminated the distinction between principals and
accomplices. By statute, in Washington, “[a] person is guilty
of a crime if it is committed by the conduct of another person
for which he or she is legally accountable.” Wash. Rev.
Code § 9A.08.020(1). Washington defines legal
accountability broadly, encompassing all who are complicit
in the commission of the crime. See Wash. Rev. Code
§ 9A.08.020(2)–(3); see also State v. Silva-Baltazar, 886
P.2d 138, 143 (Wash. 1994) (“The complicity rule in
Washington is that any person who participates in the
commission of the crime is guilty of the crime and is charged
as a principal.”). Accordingly, Washington courts have
declared that “[t]here is no separate crime of being an
accomplice; [instead] accomplice liability is principal
liability.” State v. Handley, 796 P.2d 1266, 1276 (Wash.
1990) (quoting State v. Toomey, 690 P.2d 1175, 1181 (Wash.
Ct. App. 1984)).
Washington’s consolidation of accomplice and principal
liability applies in all stages of prosecution. An information
ALFRED V. GARLAND 17
need not “expressly charge aiding or abetting or refer to
other persons” for a defendant to be found guilty as an
accomplice. State v. Rodriguez, 898 P.2d 871, 873 (Wash.
Ct. App. 1995); see also State v. Lynch, 970 P.2d 769, 772
(Wash. Ct. App. 1999) (“[A]n information that charges an
accused as a principal adequately apprises him of his
potential liability as an accomplice.”). Jurors may find a
defendant guilty of a crime without agreeing whether the
defendant acted as an accomplice or a principal. State v.
Hoffman, 804 P.2d 577, 605 (Wash. 1991) (“[I]t is not
necessary that jurors be unanimous as to the manner of an
accomplice’s and principal’s participation as long as all
agree that they did participate in the crime.”). And, “a
defendant may be found guilty as a principal or as an
accessory even though . . . the principal actor has not been
tried or has been tried and acquitted.” State v. Wilder, 608
P.2d 270, 274 (Wash. Ct. App. 1980) (internal quotation
marks and citations omitted); see also State v. Carothers,
525 P.2d 731, 734 (Wash. 1974) (“[A] verdict may be
sustained upon evidence that the defendant participated in
the commission of the crime charged, as an aider or abetter,
even though he was not expressly accused of aiding and
abetting and even though he was the only person charged in
the information.”), abrogated on other grounds by State v.
Harris, 685 P.2d 584, 587 (Wash. 1984).
The upshot is that under Washington law it is impossible
to determine whether an individual defendant has been
convicted as a principal or an accomplice—or even whether
a defendant acted alone, in concert, or with the aid of
another—without looking to the facts underlying the
conviction. Yet the categorical approach forbids us from
18 ALFRED V. GARLAND
doing so. See Descamps, 570 U.S. at 261.3 Because a
conviction under Wash. Rev. Code § 9A.56.190 does not
necessarily establish that Alfred acted as a principal, we
must consider the possibility he acted as an accomplice. We
therefore conclude that we must consider Washington
accomplice liability in our categorical analysis of
Washington robbery. See Bourtzakis v. U.S. Att’y Gen., 940
F.3d 616, 621–22 (11th Cir. 2019) (arriving at the same
conclusion).
2. Response to the Concurring Opinion
Our dissenting colleagues agree with us on this point.
Dissenting Op. at 87–88. Our concurring colleagues, 4
however, disagree with this conclusion. Although the
concurrence believes that Washington aiding and abetting
law is too different from federal generic aiding and abetting
to be a categorical match, see Concurring Op. at 70–85, it
nevertheless concludes that our categorical analysis should
not address accomplice liability at all, id. at 69. According
to the concurrence, this is because “the issue of aiding and
abetting liability is not subsumed into one of the constituent
elements of the underlying predicate offense,” but rather is
“a theory of liability” that does not affect what a jury must
find to convict a defendant. Id. at 59.
3
The government does not contend that a modified categorical approach
should apply here. See Descamps, 570 U.S. at 261 (explaining how,
under the “modified categorical approach,” courts “may look beyond the
statutory elements to the charging paper and jury instructions used in a
case” (internal quotation marks omitted)).
4
We refer to the opinion of Judge Collins as a concurrence for
simplicity’s sake. We recognize that it disagrees with us on everything
other than the judgment.
ALFRED V. GARLAND 19
We agree with many of the building blocks of the
concurrence’s analysis. We agree, for example, that the
categorical approach compares the elements of the crime in
question with the elements of the generic crime. Concurring
Op. at 56. As the concurrence explains, and we agree, an
element may be comprised of alternative means or methods
for proving a particular element, but “that overarching
element subsumes those alternative means.” Id. We further
agree “that aiding and abetting is merely a means of finding
principal liability, that it does not itself constitute an element
of the underlying offense, and that jurors need not
unanimously agree as to whether a defendant is guilty as a
principal or as an aider and abettor.” Id. at 57.
Where we disagree with the concurrence is its conclusion
that “aiding and abetting liability is not subsumed into one
of the constituent elements of the underlying predicate
offense” and that, therefore, we must “‘disregard[]’ aiding
and abetting liability.” Id. at 58 (emphasis added) (quoting
Mathis, 579 U.S. at 517). That conclusion does not follow
from the concurrence’s premises because it mischaracterizes
what abrogation of the distinction between principals and
accomplices means.
In general, under modern accomplice liability theory,
“aiding and abetting is a different means of committing a
single crime,” it is “not a separate offense itself,” and “the
government ha[s] no obligation to elect between charging a
substantive offense and charging liability on an aiding and
abetting theory.” United States v. Garcia, 400 F.3d 816, 820
(9th Cir. 2005). Accordingly, “aiding and abetting is
embedded in every federal indictment for a substantive
crime.” Id. Although it is still useful for us to refer to a
“principal” or an “accomplice,” in the end they are equally
culpable and may be convicted of the same offense. We
20 ALFRED V. GARLAND
nevertheless continue to traverse the metaphysical line
between the two as a way of distinguishing degrees of
culpability, which properly plays a role in sentencing. See
United States v. Smith, 891 F.2d 703, 714 (9th Cir. 1989)
(“The evidence was sufficient to make him an aider and
abettor . . . . The mildness of his sentence corresponds to the
minor role he had.”); see also United States v. Dominguez-
Caicedo, 40 F.4th 938, 959–62 (9th Cir. 2022); United States
v. Cordova Barajas, 360 F.3d 1037, 1042–43 (9th Cir.
2004); U.S.S.G. §§ 2X2.1 cmt. n.1 (“aiding and abetting the
commission of an offense has the same offense level as the
underlying offense. An adjustment for a mitigating role (§
3B.2) may be applicable”), 3B1.2 & cmts. nn.3–5
(describing participants who are “less culpable,” “among the
least culpable,” and “substantially less culpable.”).
The concurrence’s misstep results from
mischaracterizing Mathis. In Mathis, the Supreme Court
took up the question of how to apply the categorical
approach “when a statute happens to list various means by
which a defendant can satisfy an element.” 579 U.S. at 508.
The ACCA imposes a mandatory minimum sentence for
defendants who have three prior convictions for a “violent
felony.” 18 U.S.C. § 924(c). As relevant to Mathis, the
ACCA defines “violent felony” as any felony that is
“burglary, arson, or extortion.” Id. § 924(c)(2)(B)(ii). The
statute at issue was Iowa’s burglary statute, which, through
another statute, allowed conviction for burglary for unlawful
entry into “any building, structure, [or] land, water, or air
vehicle.” Mathis, 579 U.S. at 507 (quoting Iowa Code §
702.12). The parties and the Court agreed that no other state
permitted a burglary conviction for entering a “vehicle.” Id.
at 512. Thus, “some but not all” the locations listed in the
Iowa burglary statute “satisf[ied] the generic definition of
ALFRED V. GARLAND 21
burglary.” These different locations were not alternative
elements—creating separate crimes—but rather “alternative
ways of satisfying a single locational element.” Id. at 507,
512. But because an Iowa jury “need not agree whether the
burgled location was a building, other structure, or vehicle,”
a burglary conviction in Iowa did not necessarily mean that
a defendant satisfied the locational element for burglary in a
way that fit the generic definition. Id. at 517–18. As a result,
the Court found Iowa’s burglary statute to be categorically
overbroad and that held Mathis’s burglary conviction could
not be used to enhance his sentence under the ACCA. Id. at
515–17, 520.
The concurrence reads Mathis to mean that, because an
alternative means of satisfying an element is not itself an
element, a state’s aiding and abetting scheme has no bearing
on our categorical analysis. See Concurring Op. at 55–60.
We think, to the contrary, because accomplice liability is one
means of satisfying an element necessary to support a
conviction, we must consider it. If, as Alfred claims,
accomplice liability requires a lesser mens rea than principal
liability, then the choice between those alternative means is
significant. A simple example will prove our point. Suppose
Washington law provided that “The state may prove a theft
offense through evidence that the defendant acted purposely
or negligently.” See Model Penal Code § 2.02(2)(a), (d)
(describing those mentes reae). In the same way the Iowa
burglary statute at issue in Mathis provided alternate means
for satisfying the locational element, this statute provides
alternative means for satisfying the mens rea element—
purpose and negligence. Under our hypothetical
Washington statute, a defendant may be convicted of a theft
offense if he acted with either mens rea, and a Washington
jury would not have to decide unanimously whether the
22 ALFRED V. GARLAND
defendant acted purposefully or negligently. In such
circumstances, we would presume that “the state conviction
‘rested upon the least of the acts’ criminalized by the
statute.” Esquivel-Quintana, 581 U.S. at 189 (cleaned up)
(quoting Johnson, 559 U.S. at 137)). But permitting
conviction on the basis of negligence would not match the
elements of generic theft. See infra pp. 21–33; cf. United
States v. Benally, 843 F.3d 350, 354 (9th Cir. 2006) (holding
that a conviction based on a mens rea of gross negligence is
not a “crime of violence” under 18 U.S.C. § 924(c)); cf. also
Borden, 141 S. Ct. at 1825–28 (concluding that reckless
conduct does not qualify as a “violent felony” under the
ACCA); United States v. Garcia-Jimenez, 807 F.3d 1079,
1085 (9th Cir. 2015) (concluding that “a mens rea of extreme
indifferent recklessness is not sufficient to meet the federal
generic definition of aggravated assault”). In our
hypothetical, negligence (as an alternative mens rea) is
subsumed in the intent element, and no one could reasonably
argue that “we must ‘disregard[]’ [the mens rea] in
determining whether there is a categorical match between a
state offense and a federal generic offense.” Concurring Op.
at 58 (quoting Mathis, 579 U.S. at 517).
The concurrence claims that our hypothetical “is not
relevant” because, in its view, aiding and abetting is different
from a crime that lists two possible mentes reae. Concurring
Op. at 62. According to the concurrence, this is because—
unlike an offense that lists multiple means of commission
within the statute— “[w]hen aiding and abetting is invoked
. . . the jury must still find that, as to either or both of the co-
participants, each of the elements of that offense have been
met.” Id. at 58 (emphasis added). This statement is
technically correct, but it only serves to undercut the
concurrence’s position.
ALFRED V. GARLAND 23
We agree with the concurrence that, to convict a
defendant as an accomplice, “the Government . . . ‘must
prove that someone committed,’” Concurring Op. at 58
(emphasis added) (quoting United States v. Mann, 811 F.2d
495, 497 (9th Cir. 1987)), “all the acts constituting the
elements of the substantive crime charged,” Mann, 811 F.2d
at 497. However, the concurrence also appears to believe
that it does not matter whether a conviction necessarily
establishes that the defendant in question committed a
generic offense so long as the conviction establishes that
someone, somewhere did so. See Concurring Op. at 60–61.
Under the concurrence’s theory, a defendant could receive
an enhanced sentence because someone else committed a
generic offense.
The concurrence’s position makes no sense. A
defendant—even an accomplice—is responsible for his own
acts, not the acts of others. See Mann, 811 F.2d at 497 (“It
is not a prerequisite to a conviction for aiding and abetting .
. . that the principal be tried and convicted, or even that the
principal be identified. In fact, an aider and abettor’s
conviction may be upheld even though the principal is
acquitted of the underlying offense.” (citations omitted)).
That is why the categorical approach asks “whether a state
offense necessarily involves the defendant’s” commission of
acts that categorically match a federal standard. Borden v.
United States, 141 S. Ct. 1817, 1822 (2021) (plurality op.)
(emphasis added). A conviction showing that someone else
satisfied the elements of a generic offense does not
necessarily mean that the defendant satisfied those same
elements. By ignoring this basic principle, the concurrence
would tie immigration and sentencing consequences to facts
that a conviction does not necessarily establish, thereby
violating basic principles of the categorical approach. See
24 ALFRED V. GARLAND
Moncrieffe, 569 U.S. at 205 n.11 (the categorical approach
focuses on “what facts are necessarily established by a
conviction for the state offense”); see also Mathis, 579 U.S.
at 505.
In sum, we remain perplexed that the concurrence
concludes that Washington accomplice liability sweeps
more broadly than generic law, see Concurring Op. at 70–
85, but simultaneously insists that accomplice liability is
“not relevant” to our categorical inquiry, id. at 62. To be
sure, we disagree with the concurrence’s conclusion that
Washington accomplice liability is not a categorical match
for generic aiding and abetting. But the concurrence would
have us ignore any overbreadth that accompanies a state’s
accomplice liability scheme, no matter how egregious.
***
We think the question raised in Valdivia-Flores—
whether a defendant can be convicted in Washington of
aiding and abetting based on a lesser mens rea than that
required for principal liability—is not irrelevant and must be
answered. We now turn to that question.
B. Defining Washington and Generic Accomplice Liability
1. Washington accomplice liability
Washington law defines a person as an accomplice if:
(a) With knowledge that it will promote or facilitate the
commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such
other person to commit it; or
(ii) Aids or agrees to aid such other person in
planning or committing it; or
ALFRED V. GARLAND 25
(b) His or her conduct is expressly declared by law to
establish his or her complicity.
Wash. Rev. Code § 9A.08.020(3).
Washington courts have held that the knowledge
component in the accomplice liability statute refers to
knowledge of the conduct that forms the basis of the charged
offense. State v. Roberts, 14 P.3d 713, 735 (Wash. 2000).
Thus, to convict a defendant as an accomplice under
Washington law, the government must show that the
defendant “acted with knowledge that his or her conduct
would promote or facilitate the crime” charged, rather than
knowledge that the conduct would “aid[] in the commission
of any crime.” State v. Cronin, 14 P.3d 752, 757 (Wash.
2000). This means that accomplice liability “[does] not
extend beyond the crimes of which the accomplice actually
has knowledge.” Id. at 758 (quoting Roberts, 15 P.3d at
735). At the same time, “[s]pecific knowledge of the
elements of the coparticipant’s crime need not be proved to
convict one as an accomplice.” State v. Drewees, 432 P.3d
795, 801 (Wash. 2019) (quoting State v. Rice, 683 P.2d 199
(Wash. 1984)). Instead, the government need only prove
the defendant had “general knowledge of his coparticipant’s
substantive crime.” Roberts, 14 P.3d at 736 (quoting Rice,
683 P.2d at 203). In practical terms, this means that the
government must establish the accomplice knew of the
general crime (i.e., “assault”), but it need not establish
knowledge of the specific degree of the crime (i.e., “first-
degree assault”). Sarausad v. State, 39 P.3d 308, 314–15
(Wash. Ct. App. 2001) (discussing Cronin, 14 P.3d at 758–
59).
26 ALFRED V. GARLAND
2. Generic accomplice liability
To determine the federal generic definition of a crime,
we “ordinarily survey[] a number of sources—including
state statutes, the Model Penal Code, federal law, and
criminal treatises.” United States v. Garcia-Jimenez, 807
F.3d 1079, 1084 (9th Cir. 2015). “Most often, ‘[t]he generic
definition of an offense roughly corresponds to the
definitions of the offense in a majority of the States’ criminal
codes,’” id. (quoting United States v. Garcia-Santana, 774
F.3d 528, 534 (9th Cir. 2014), abrogated on other grounds
by Esquivel-Quintana, 581 U.S. 385), but how courts have
applied these statutes is also relevant, see Duenas-Alvarez,
549 U.S. at 190–91. The generic offense is simply “the
offense as commonly understood.” Mathis, 579 U.S. at 503.
Commentators have noted that “[c]onsiderable
confusion exists as to what the accomplice’s mental state
must be in order to hold him accountable for an offense
committed by another.” 2 Wayne R. LaFave, Substantive
Criminal Law § 13.2(b), at 466 (3d ed. 2018) [hereinafter
LaFave]. The confusion has resulted in “considerable
variation in the language used by courts and legislatures”
regarding the mens rea necessary for accomplice liability.
Id.; see also Jens David Ohlin, Wharton’s Criminal Law
§ 10.9 (16th ed. 2022) [hereinafter Wharton’s Criminal
Law] (“How the general complicity mental standard applies
to specific crimes has generated a rich but sometimes
confusing jurisprudence . . . .”); Alexander F. Sarch,
Condoning the Crime: The Elusive Mens Rea for
Complicity, 47 Loy. U. Chi. L.J. 131, 133 (2015) (observing
“a long history of disagreement about how, precisely, this
mens rea should be understood” and cataloguing various
approaches including “intention or purpose” and
“knowledge”); Baruch Weiss, What Were They Thinking:
ALFRED V. GARLAND 27
The Mental States of the Aider and Abettor and the Causer
Under Federal Law, 70 Fordham L. Rev. 1341, 1351 (2002)
(“[T]he current status of the law on the aider and abettor’s
mental state is far from clear. In fact, it is best described
today as in a state of chaos.”).
We may divide state accomplice liability law into four
general categories. See John F. Decker, The Mental State
Requirement for Accomplice Liability in American Criminal
Law, 60 S. C. L. Rev. 237 (2008) (surveying federal and state
law). These categories are based in both state statutory
language as well as state common law.
Purpose. In the first category are jurisdictions that
require a mens rea of “purpose” or similar term like
“willfulness.” Federal statutory definitions, the Model Penal
Code, and some states fall into this category. See 18 U.S.C.
§ 2(b) (“Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.”
(emphasis added)); Model Penal Code § 2.06(3)(a) (“A
person is an accomplice of another person . . . if[,] with the
purpose of promoting or facilitating the commission of the
offense, he . . . aids . . . such other person in planning or
committing it.” (emphasis added)); N.J. Stat. Ann. § 2C:2-
6(c) (using Model Penal Code language). A number of other
states use the broader term “intent.” See, e.g., Or. Rev. Stat.
§ 161.155 (“A person is criminally liable for the conduct of
another person constituting a crime if . . . [w]ith the intent to
promote or facilitate the crime the person . . . [a]ids or abets
. . . such other person in planning or committing the crime.”
(emphasis added)); Tex. Penal Code § 7.02(a) (“A person is
criminally responsible for an offense committed by the
conduct of another if . . . acting with intent to promote or
assist the commission of the offense, he solicits, encourages,
28 ALFRED V. GARLAND
directs, aids, or attempts to aid the other person to commit
the offense[.]” (emphasis added)). Roughly half the states
use one of these terms. LaFave, supra, § 13.2(b), at 466–67
nn.70 & 72 (listing states).
Knowledge. In the second category are states like
Washington that require a mens rea of knowledge. See
Wash. Rev. Code § 9A.08.020(3); Ind. Code Ann. § 35-41-
2-4 (“A person who knowingly or intentionally aids, induces,
or causes another person to commit an offense commits that
offense . . . .” (emphasis added)); W. Va. Code Ann. § 61-2-
14e (“If any person in any way knowingly aid or abet any
other person in the commission of any offense . . . such
person so aiding and abetting shall be guilty as a principal
. . . .” (emphasis added)); Wyo. Stat. Ann. § 6-1-201 (“A
person who knowingly aids or abets in the commission of a
felony . . . may be indicted, informed against, tried and
convicted as if he were a principal . . . .” (emphasis added)).
Few states use statutory language that requires only
knowledge. See Decker, supra, at 250–51 (placing four
states in this category).
Derivative Mens Rea. Third, roughly fifteen states
require the accomplice to act with the same mens rea as that
required to prove the principal offense. Decker, supra, at
275–310 (surveying states); see, e.g., N.Y. Penal Law §
20.00 (“When one person engages in conduct which
constitutes an offense, another person is criminally liable for
such conduct when, acting with the mental culpability
required for the commission thereof, he . . . intentionally aids
such person to engage in such conduct.” (emphasis added));
Utah Code Ann. § 76-2-202 (“Every person, acting with the
mental state required for the commission of an offense who
. . . intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable as a
ALFRED V. GARLAND 29
party for such conduct.” (emphasis added)). This has been
called the “derivative approach.” Sarch, supra, at 133. If a
principal may be convicted for a crime based on criminally
negligent conduct, so too may an accomplice. Weiss, supra,
at 1376. At the same time, evidence of the accomplice’s
purposeful intent is necessary to support a conviction for a
crime that requires the principal to act purposefully. Id.
Natural and Probable Consequences. The fourth
category comprises states that have expanded accomplice
liability through use of the natural and probable
consequences doctrine, derived from tort law. See People v.
Prettyman, 926 P.2d 1013, 1037–38 (Cal. 1996) (Brown, J.,
concurring in the judgment) (summarizing history). This
doctrine “holds a person accountable not just for the crimes
the person intended to aid and abet but also for any offense
that is a reasonably foreseeable consequence of the criminal
scheme.” Decker, supra, at 249; see also Ariz. Rev. Stat. §
13-303(A)(3) (“The person is an accomplice of such other
person in the commission of an offense including any
offense that is a natural and probable or reasonably
foreseeable consequence of the offense for which the person
was an accomplice.”). A specific mens rea is still necessary
for the initial offense, but not for the offenses that
foreseeably follow. See State v. Linscott, 520 A.2d 1067,
1070 (Me. 1987) (“So long as the accomplice intended to
promote the primary crime, and the commission of the
secondary crime was a foreseeable consequence of the
accomplice’s participation in the primary crime, no further
evidence of the accomplice’s subjective state of mind as to
the secondary crime is required.”). As a result, this category
overlaps with the other three; states in this category require
a purposeful, knowing, or derivative mens rea for the initial
crime, but make the accomplice liable for foreseeable crimes
30 ALFRED V. GARLAND
committed by the principal. See, e.g., Minn. Stat. Ann. §
609.05(1)–(2) (purposeful); Iowa Code § 703.2 (knowing);
Ariz. Rev. Stat. § 13-303(A)(2)–(3) (derivative). Over a
dozen states use some variation of this rule. See LaFave,
supra, § 13.3(b), at 494–95 nn.28–29; Decker, supra, at
312–52.
Although these categories embrace different language, it
is difficult to tell whether the categories actually are
inconsistent with each other or simply represent different
approaches to defining a single concept of accomplice
liability. See LaFave, supra, § 13.2(b), at 467 (suggesting
that the variations in language “may represent different ways
of stating the same mental state requirement”). From this, it
is equally difficult to discern a clear generic standard.
However, we can say that a majority of jurisdictions use
statutory language that requires a showing of purpose or
something similar to convict a defendant as an accomplice.
This majority includes all the states in the first category, and,
at least for specific intent crimes, the states in the third
category. States in the fourth category are included
inasmuch as they incorporate an intentional or a derivative
mens rea requirement for the initial offense.
A majority of state statutes require some kind of
purposeful conduct to establish accomplice liability for at
least some crimes, but jurisdictions have defined that intent
differently. See Wharton’s Criminal Law, supra, at § 10:9
(“The intent requirement for accomplice liability is
sometimes ambiguous in the sense that intent can mean
‘purposely’ and at other times ‘knowingly.’”). Thus, to
define generic accomplice liability, we must look at how
courts have applied statutory intent requirements. In the
context of this case, our task is to determine the relationship
between jurisdictions that require proof of “purpose,”
ALFRED V. GARLAND 31
“willfulness,” or “intent,” and those that, like Washington,
require proof of “knowledge.” We find that, in this context,
these terms are largely synonymous.
The question has some history in the Supreme Court. In
United States v. Bailey, 444 U.S. 394 (1980), the Court took
up a general discussion of mens rea. The Court began with
the declaration that “[f]ew areas of criminal law pose more
difficulty than the proper definition of the mens rea required
for any particular crime.” Id. at 403. The Court observed
that the Model Penal Code had sought to replace “the
ambiguous and elastic term ‘intent’ . . . with a hierarchy of
culpable states of mind.” Id. at 404. “[I]n descending order
of culpability,” they are “purpose, knowledge, recklessness,
and negligence.” Id. (footnote omitted). The Court
described the first two, “purpose” and “knowledge,” as “the
most significant, and most esoteric,” and said that “[i]n the
case of most crimes, ‘the limited distinction between
knowledge and purpose has not been considered
important.’” Id. (quoting United States v. United States
Gypsum Co., 438 U.S. 422, 445 (1978)). But, the Court
acknowledged, “[i]n certain narrow classes of crimes,”
including inchoate crimes, “culpability has been thought to
merit special attention.” Id. at 405; see also Borden, 141 S.
Ct. at 1822–23 & n.3 (listing “accessory liability (aiding and
abetting)” as among the crimes, including inchoate crimes,
requiring “special attention”; expressing no view on “those
offenses, nor the relationship more generally between
purpose and knowledge” (internal quotation marks and
citations omitted)). The Court offered this distinction:
A person who causes a particular result is said
to act purposefully if he consciously desires
that result, whatever the likelihood of that
32 ALFRED V. GARLAND
result happening from his conduct, while he
is said to act knowingly if he is aware that the
result is practically certain to follow from his
conduct, whatever his desire may be as to that
result.
Bailey, 444 U.S. at 404 (internal quotation marks and
citations omitted) (emphasis added). Then the Court
commented: “In a general sense, ‘purpose’ corresponds
loosely with the common-law concept of specific intent,
while ‘knowledge’ corresponds loosely with the concept of
general intent.” Id. at 405.
If Bailey’s general observation were the last word, we
would be compelled to agree that Washington’s requirement
of “knowledge” is a lesser mens rea than “intent” or
“purpose.” See Dissenting Op. at 88–91. But if the
“ambigu[ity]” and “elastic[ity]” that inheres in “the limited
distinction between knowledge and purpose” has not
acquired clarity in the forty years since the Court identified
the conundrum in Bailey, 444 U.S. at 404 (internal quotation
marks omitted), we at least have some additional clarity with
respect to accomplice liability.
We find the Court’s general discussion of accomplice
liability in Rosemond v. United States, 572 U.S. 65 (2014),
helpful. Rosemond involved the federal aiding and abetting
statute, 18 U.S.C. § 2, which provides that a person may be
“punishable as a principal” if he “willfully causes an act to
be done which if directly performed by him or another would
be an offense against the United States.” Id. § 2(b). The
Court observed that § 2 is derived from common-law
standards that punish a person for aiding or abetting if he
took “an affirmative act in furtherance of that offense . . .
with the intent of facilitating the offense’s commission.”
ALFRED V. GARLAND 33
Rosemond, 572 U.S. at 71. Putting that intent in practical
terms, the Court stated that the “intent requirement [is]
satisfied when a person actively participates in a criminal
venture with full knowledge of the circumstances
constituting the charged offense.” Id. at 77; see Central
Bank of Denver, N.A. v. First Interstate Bank of Denver,
N.A., 511 U.S. 164, 181 (1994) (“[T]hose who provide
knowing aid to persons committing federal crimes, with the
intent to facilitate the crime, are themselves committing a
crime.”); U.S. Gypsum Co., 438 U.S. at 445 (recognizing
that, regardless of whether a defendant acted purposefully or
knowingly, it may be said that she intended the result of her
actions); Pereira v. United States, 347 U.S. 1, 12 (1954)
(holding that “knowledge” of the scheme satisfied the intent
requirement for accomplice liability). Throughout its
opinion, the Court equated intent with “advance
knowledge,” meaning “knowledge at a time the accomplice
can do something with it—most notably, opt to walk away.”
Rosemond, 572 U.S. at 78 (footnote omitted). Accordingly,
“[w]hat matters for purposes of gauging intent . . . is that the
defendant has chosen, with full knowledge, to participate in
the illegal scheme—not that, if all had been left to him, he
would have planned the identical crime.” Id. at 79. In
dissent, Justice Alito observed:
[S]ome of our cases suggest that an aider and
abettor must act purposefully or with intent. .
. . [Other] cases . . . appear to hold that the
requisite mens rea is simply knowledge. The
Court refers interchangeably to both of these
tests and thus leaves our case law in the same,
somewhat conflicted state that previously
existed. But because the difference between
34 ALFRED V. GARLAND
acting purposefully . . . and acting knowingly
is slight, this is not a matter of great concern.
Id. at 84–85 (Alito, J., dissenting).
The blurred line between intent and knowledge is
apparent throughout state law as well. Many states with
accomplice liability statutes that require a showing of intent
nevertheless allow a conviction based on circumstantial
evidence of the putative accomplice’s knowledge of the
crime. See generally LaFave, supra § 13.2(b), at 468 (noting
authority “to the effect that one may become an accomplice
by giving encouragement or assistance with knowledge that
it will promote or facilitate a crime”). For example, Missouri
defines an accomplice as one who “aids or agrees to aid”
another “with the purpose of promoting the commission of
an offense.” Mo. Rev. Stat. § 562.041. Nevertheless, a
conviction may be supported by “[a]ny evidence, either
direct or circumstantial, that shows affirmative
participation,” including the accomplice’s conduct and
knowledge of the offense. State v. Barker, 442 S.W.3d 165,
169 (Mo. App. W.D. 2014) (internal quotation marks
omitted); see also State v. Williams, 409 S.W.3d 460, 468
(Mo. App. W.D. 2013) (“Circumstances that may support
the inference of an accomplice’s affirmative participation
include . . . knowledge.” (internal quotation marks omitted)).
Likewise, in Michigan, accomplice liability attaches if the
defendant “intended the commission of the crime or had
knowledge that the principal intended [the crime’s]
commission at the time that [the defendant] gave aid and
encouragement.” People v. Robinson, 715 N.W.2d 44, 48
(Mich. 2006) (internal quotation marks omitted and
emphasis added); see also Mich. Comp. Laws § 767.39
(attaching criminal liability to “[e]very person concerned in
ALFRED V. GARLAND 35
the commission of an offense,” without providing a mens
rea). And Wisconsin, which requires that an accomplice act
“intentionally,” Wis. Stat. Ann. § 939.05(2)(b), defines that
intent in terms of knowledge. See Wis. JI-Criminal, No. 405
(“A person intentionally aids or abets the commission of a
crime when, acting with knowledge or belief that another
person is committing or intends to commit a crime, he
knowingly . . . renders aid to the person who commits the
crime.”); see also State v. Hibbard, No. 2020AP1157-CR,
2022 WL 4363364, at *3 (Wis. Ct. App. Sept. 21, 2022)
(approving the instruction). These states are not outliers;
many others have mingled knowledge and intent in the
accomplice liability context. 5
We hold that generic accomplice liability requires a
showing that the putative accomplice intentionally aided or
abetted another in the commission of the crime. However,
because many jurisdictions have interpreted this intent
requirement as encompassing both purposeful and knowing
5
See, e.g., People v. Peters, 586 N.E. 2d 180, 190 (Ill. Ct. App. 1991)
(“Intent may be gleaned from knowledge.”); Specht v. State, 838 N.E.2d
1081, 1087 (Ind. Ct. App. 2005) (“Because [the defendant] was
prosecuted on an accomplice liability theory, the State was required to
prove that [the defendant] knowingly or intentionally aided, induced, or
caused [the principal] to commit the offenses.”); State v. Gonzalez, 12
P.3d 382, 384 (Idaho Ct. App. 2000) (“The definition of aiding and
abetting may encompass the activity of one who intentionally assists or
encourages or knowingly participates by any such means in bringing
about the commission of a crime.” (emphasis added)); State v. Smith, 901
N.W.2d 657, 663 (Minn. Ct. App. 2017) (explaining that providing aid
with knowledge of the principal’s criminal intent is sufficient to satisfy
knowledge and intent requirements for accomplice liability).
36 ALFRED V. GARLAND
conduct, 6 we also conclude that advance knowledge of the
crime is sufficient to support a conviction for generic
accomplice liability.
This holding does not mean that all statutes that fall
under the generic definition of accomplice liability are to be
interpreted in the same way. Doing so would ignore the
jurisdictional distinctions that we have so carefully
described. See supra pp. 27–30. Instead, we observe that
aiding and abetting has been defined in so many different
ways that its generic form must be broad enough to
encompass jurisdictions that require purposeful conduct, as
well as those that require accomplices to act with knowledge
that their conduct will promote or facilitate commission of
the crime. See Wash. Rev. Code § 9A.08.020(3).
Our broad interpretation of a generic accomplice liability
does not erase the distinctions between states’ approaches to
accomplice liability. Duenas-Alvarez illustrates this point.
There, the Court held that California’s natural and probable
consequences doctrine adequately reflected generic law so
as not to be overbroad. See Duenas-Alvarez, 549 U.S. at
193–94. But this holding did not impose the natural and
probable consequences doctrine on the states that did not
already use it. Nor did it render every accomplice liability
statute that did not use a natural and probable consequences
doctrine overbroad. Rather, Duenas-Alvarez envisions a
generic definition of accomplice liability that encompasses
jurisdictions that use a natural and probable consequences
6
The dissent quibbles with our characterization of the law in some of the
states we have surveyed. Dissenting Op. at 91–92. But the dissent does
not dispute the only point that matters: these states permit conviction as
an accomplice for knowing conduct.
ALFRED V. GARLAND 37
doctrine, as well as those that do not. See id. at 190–91, 193–
94.
C. Comparing Washington and Generic Accomplice
Liability
Having concluded that the intent element of generic
accomplice liability may be satisfied by showing advance
knowledge of the crime, it remains for us to determine
whether Washington’s mens rea requirement diverges
significantly from this standard. There are at least two ways
to compare Washington law to the generic standard. First,
we can simply compare the text of Washington’s aiding and
abetting standard to the generic standard to see if “greater
breadth is evident from its text.” Lopez-Aguilar v. Barr, 984
F.3d 1143, 1147 (9th Cir. 2020) (quoting United States v.
Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),
abrogated on other grounds by United States v. Stitt, 139 S.
Ct. 399 (2018)). Second, we can review Washington’s case
law to see whether there is a “a realistic probability, not a
theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a
crime.” Duenas-Alvarez, 549 U.S. at 193; see also United
States v. Taylor, 142 S. Ct. 2015, 2024–25 (2022)
(interpreting the “realistic probability” requirement
narrowly). In this case, we will consider both because we do
not think either approach, considered alone, fully captures
Washington’s state of the law. See Alvarado-Pineda, 774
F.3d at 1202 (looking to Washington statutes and cases).
We have been aided in our inquiry by the Eleventh
Circuit’s analysis of this same question in Bourtzakis v.
United States Attorney General, 940 F.3d 616 (11th Cir.
2019). In that case, the Eleventh Circuit had to determine
whether a conviction of drug trafficking under Wash. Rev.
38 ALFRED V. GARLAND
Code § 69.50.401(a) constitutes an aggravated felony for
purposes of the INA. Id. at 618. After determining that
Washington’s accomplice liability scheme required it to take
up the question of generic accomplice liability, the Eleventh
Circuit looked to whether Washington aiding and abetting
was broader than federal law. Although the Eleventh Circuit
acknowledged a “difference in language,” it nevertheless
found that “the mens-rea requirements for accomplice
liability under the Washington statute and the federal Act do
not diverge.” Id. at 622. 7
Reviewing Supreme Court precedent, including
Rosemond, the Eleventh Circuit determined that “the
requirement that an accomplice to a federal crime ‘intend[]
to facilitate that offense’s commission is satisfied by proof
that the accomplice actively participated in the crime and
knew the nature of the crime he was facilitating.’” Id. at 623
(quoting Rosemond, 572 U.S. at 76–77 (majority op.)).
Turning to Washington precedent, the Eleventh Circuit
discussed Washington’s rule that, “‘to be an accomplice, an
individual must have acted with knowledge that he or she
was promoting or facilitating the crime for which that
individual was eventually charged’—not just ‘any crime.’”
Id. (quoting Cronin, 14 P.3d at 757–58) (cleaned up).
Comparing the two standards, the Eleventh Circuit
concluded that “the mens-rea requirements for accomplice
liability under Washington and federal law mirror one
another” because, under both, “a person is liable as an
7
Bourtzakis compared the Washington statute to federal statutory law
rather than its federal generic equivalent. See 940 F.3d at 622–25.
However, because 18 U.S.C. § 2(a) adequately reflects federal generic
accomplice liability law, this distinction is immaterial.
ALFRED V. GARLAND 39
accomplice if he actively participates in a crime and knows
the nature of the crime he is facilitating.” Id. at 623.
We agree with the Eleventh Circuit’s reasoning in
Bourtzakis. Both Washington and federal generic
accomplice liability law require prosecutors to meet the
same standard of proof: they must show the accomplice had
advance knowledge of the crime he facilitated. In
Washington, the statute provides that an accomplice acts
“[w]ith knowledge that [the conduct] will promote or
facilitate the commission of the crime.” Wash. Rev. Code §
9A.08.020(3)(a). Washington courts have reaffirmed the
statutory requirement, holding that the state must prove a
defendant “acted with knowledge that he or she was
promoting or facilitating the crime for which that individual
was eventually charged.” Cronin, 14 P.3d at 758. And the
Supreme Court has interpreted common law accomplice
liability as requiring evidence that a defendant “actively
participat[ed] in a criminal venture with full knowledge of
the circumstances constituting the charged offense.”
Rosemond, 572 U.S. at 77. We see no significant daylight
between these two standards.
Citing Rosemond, Alfred posits that the standards are
distinct because generic federal law requires the accomplice
have “full awareness,” id. at 76–77, whereas Washington
law requires only “general knowledge,” Roberts, 14 P.3d at
736. The dissent advances a similar argument, contrasting
Rosemond’s requirement that the accomplice be aware of the
“entire crime” with Washington law providing that the state
need not prove an accomplice was aware of “every element”
of the crime. Dissenting Op. at 92–93 (first quoting
Rosemond, 572 U.S. at 76, then quoting Roberts, 14 P.3d at
736). To answer these arguments, we must first explain the
facts of Rosemond in greater detail.
40 ALFRED V. GARLAND
Rosemond tasked the Supreme Court with determining
“what the Government must show when it accuses a
defendant of aiding or abetting” a violation of 18 U.S.C. §
924(c). 572 U.S. at 67. Section 924(c) prohibits “us[ing] or
carr[ying] a firearm during and in relation to any crime of
violence or drug trafficking crime.” It is an unusual statute
because it penalizes the use of a firearm during the
commission of another crime. Section 924(c) defines a
“combination crime” that “punishes the temporal and
relational conjunction of two separate acts”—use of a
firearm and commission of a violent or drug trafficking
offense—“on the ground that together they pose an extreme
risk of harm.” Rosemond, 572 U.S. at 75. Rosemond was
convicted of violating § 924(c), but he could also have been
charged with aiding and abetting a marijuana sale even if a
gun had not been used. The Court held that, to be convicted
under § 924(c) as an accomplice, Rosemond must have
“advance knowledge” of the firearm, and not just the
marijuana deal, such that he may “make the relevant legal
(and indeed moral) choice.” Id. at 78.
Alfred and the dissent contrast the Court’s holding in
Rosemond with several Washington cases, the most
persuasive of which is State v. Davis, 682 P.2d 883 (Wash.
1984). There, the Washington Supreme Court held that, to
convict an individual of first-degree armed robbery with a
deadly weapon, the prosecution was “not required to prove
that the accomplice had knowledge that the principal was
armed.” Id. at 884; see also State v. McChristian, 241 P.3d
468, 472 (Wash. Ct. App. 2010) (holding that, to be
convicted of first-degree assault with a deadly weapon, an
accomplice need not have knowledge that the principal
would use a deadly weapon). Alfred argues that this runs
contrary to Rosemond, which requires such prior knowledge
ALFRED V. GARLAND 41
for a § 924(c) conviction. Alfred’s argument fails for three
independent reasons.
First, neither Davis nor any other Washington case he
cites involved a combination crime like § 924(c). Section
924(c) is a “freestanding offense” that requires proof of two
distinct acts. Rosemond, 572 U.S. at 75. In contrast, first-
degree armed robbery is an enhanced version of a base
offense—simple robbery. See Wash. Rev. Code
§§ 9A.56.190, 9A.56.200. We do not know what
Washington courts would do if presented with a combination
crime like § 924(c). However, Washington precedent
indicates Washington courts would likely require the same
double-barreled knowledge standard that Rosemond applied
to § 924(c). Washington law provides that an accomplice
must act with “the purpose to promote or facilitate the
particular conduct that forms the basis for the charge.”
Sarausad, 39 P.3d at 314 (internal quotation marks and
emphasis omitted). A combination crime “contain[s] two
distinct conduct elements.” United States v. Rodriguez-
Moreno, 526 U.S. 275, 280 (1999); see also Dean v. United
States, 556 U.S. 568, 576 (2009) (referring to § 924(c) as
punishing “unlawful conduct twice over”). Thus, under
Washington law an accomplice cannot act with the purpose
to promote a combination crime without having knowledge
of both distinct conduct elements—the same standard used
in Rosemond. At the same time, nothing in Davis suggests
that Washington courts would interpret combination crimes
in the same way they interpret enhanced offenses. 8
8
The concurrence calls the distinction between combination crimes and
enhanced offenses “illusory and ultimately incoherent.” Concurring Op.
at 83. We disagree. As the concurrence observes, unlike an aggravated
42 ALFRED V. GARLAND
Accordingly, Davis does not stand for the proposition that
Washington accomplice liability extends beyond that
expressed in Rosemond.
Second, Rosemond’s discussion of § 924(c) does not
purport to define generic accomplice liability law. Rather, it
reflects the challenge of applying federal accomplice
liability law to a combination crime. Though much of
Rosemond builds on general principles, see id. at 70–71, 76–
77, its application of those principles to § 924(c) is novel.
Consequently, some of our sister circuits have declined to
apply Rosemond’s two-headed advance knowledge
requirement outside the context of § 924(c). See, e.g.,
United States v. Simpson, 44 F.4th 1093, 1098–99 (8th Cir.
2022); United States v. Chavez, 951 F.3d 349, 361–62 (6th
Cir. 2020); United States v. Baker, 912 F.3d 297, 313–14
(5th Cir. 2019); Stuckey v. United States, 878 F.3d 62, 71–
72 (2d Cir. 2017). And, more importantly, many states have
explicitly rejected Rosemond’s interpretation of § 924(c) as
incompatible with state law. See, e.g., Hicks v. State, 759
S.E.2d 509, 514–15 & n.3 (Ga. 2014); People v. Sandoval,
488 P.3d 441, 445–46 (Colo. Ct. App. 2018); State v. Ward,
473 S.W.3d 686, 693 (Mo. Ct. App. 2015); see also State v.
Edwards, No. 45764-4-II, 2016 WL 900668, at *9 n.12
(Wash. Ct. App. Mar. 1, 2016). Contrary to the
concurrence’s assertions otherwise, see Concurring Op. at
83–84, we express no opinion on whether the “full
version of an offense, § 924(c) may be “charged and punished in addition
to the predicate offense.” Concurring Op. at 83 (citing 18 U.S.C. §
924(c)(1)(D)(ii)). Section 924(c) is an “entirely new crime” that is
distinct from both the predicate violent or drug offense and the use or
carriage of a firearm. Castillo v. United States, 530 U.S. 120, 125 (2000).
Thus, “the underlying crime of violence [or drug trafficking offense] is
not the basic crime . . . at issue.” Id. at 126.
ALFRED V. GARLAND 43
knowledge” requirement in Rosemond applies to crimes that
are not combination crimes. Rather, we hold that generic
aiding and abetting does not require “full knowledge”
because the requirement arose in the context of an atypical
statute and numerous jurisdictions have refused to apply it
elsewhere.
Third, and relatedly, Alfred has failed to demonstrate
that Washington’s accomplice liability scheme does not
reflect generic law. Washington’s accomplice liability
scheme is not unique. The Washington Supreme Court’s
decision in Davis, for example, is not an outlier: many states
allow conviction of an accomplice to armed robbery without
proof that the accomplice knew another person would
brandish a firearm. See, e.g., State v. Pond, 108 A.3d 1083,
1099 (Conn. 2015); Jones v. State, 648 So.2d 1210, 1211
(Fla. Dist. Ct. App. 1995); People v. Overten, 34 Cal. Rptr.
2d 232, 234 (Cal. Ct. App. 1994). And as we have explained,
Washington is not the only state that allows conviction of an
accomplice for knowing conduct. See, e.g., Ind. Code § 35-
41-2-4. Accordingly, we cannot identify anything “special”
about Washington’s accomplice liability law, such that it
would render Washington law overbroad. See Duenas-
Alvarez, 549 U.S. at 191.
Struggling with our discussion of Washington law, the
dissent cites State v. Dreewes, 432 P.3d 795 (Wash. 2019),
for the proposition that an accomplice in Washington can be
convicted of assault with a deadly weapon despite lacking
knowledge of the principal’s intent to commit assault.
Dissenting Op. at 94–95. But Dreewes held no such thing.
Instead, the Washington Supreme Court found that a jury
could reasonably infer that the defendant, Jennifer Dreewes,
knew that her compatriots would commit assault with a
deadly weapon. Dreewes had “offered the coparticipants
44 ALFRED V. GARLAND
$300 to go to the identified residence, retrieve her items, give
the pink-haired girl two black eyes, and abduct her and bring
her to Dreewes’s property.” Dreewes, 432 P.3d at 801.
Moreover, Dreewes “encouraged her coparticipants to arm
themselves and informed them that four to five adults were
at the residence.” Id. at 802. The Washington Supreme
Court held that this conduct supported a reasonable inference
that despite not “know[ing] the names of all potential
victims,” Dreewes knew her actions would “promot[e] or
facilitat[e] the crime eventually charged.” Id. (internal
quotation marks omitted and emphasis added). Such
knowing conduct is sufficient to establish generic intent. See
Rosemond, 572 U.S. at 77. 9
The dissent’s discussion of Drewees leads to its core
complaint—the dissent accuses us of “collapsing the
purpose and knowledge mental states.” Dissenting Op. at
96. We have done no such thing. We recognize that
knowledge and purpose are distinct. See Wash. Rev. Code
§ 9A.08.010(1)(a)–(b). We also do not dispute that some
states have explicitly held that knowledge cannot support a
9
In an effort to show that knowing conduct in Washington does not equal
intent, the dissent cites State v. A.L.Y., No. 56645-8-I, 2006 WL 2723983
(Wash. Ct. App. Sept. 25, 2006). Dissenting Op. at 95. But A.L.Y., an
unpublished intermediate court decision, merely shows the overlap
between knowing and purposeful conduct. After his compatriot shoved
and threatened a group of younger boys, A.L.Y. “told the boys that the
only way to settle the situation was with money,” and then accepted the
money that the boys handed over. A.L.Y., 2006 WL 2723983, at *3–4
(internal quotation marks omitted). On appeal, A.L.Y. argued that his
subsequent desire to “return the money” disproved any intent to deprive
his victims of their property. Id. at *3. The Washington Court of
Appeals rejected this argument, finding that the facts showed A.L.Y.
actively participated in the robbery. Id. at *4. Such conduct denotes
purpose as well as knowledge.
ALFRED V. GARLAND 45
conviction as an accomplice without additional proof of
intent. See, e.g, Priddy v. Commonwealth, 629 S.W. 3d 14,
19 (Ky. 2021). Nevertheless, our task is to determine
whether Alfred was convicted under a statute that “sweeps
more broadly than the generic crime.” Descamps, 570 U.S.
at 261. We have demonstrated that this is not the case;
conduct that one knows would promote or facilitate the
commission of the crime, like purposeful conduct,
establishes intent to aid and abet under generic law. See
Rosemond, 572 U.S. at 77 (“[F]or purposes of aiding and
abetting law, a person who actively participates in a criminal
scheme knowing its extent and character intends that
scheme’s commission.”).
Lastly, the concurrence argues that Washington departs
from federal generic law because Washington allows
conviction of an individual who “incidentally facilitate[d] a
criminal venture rather than actively participate[d] in it.”
Concurring Op. at 77 (quoting Rosemond, 572 U.S. at 77
n.8). But the concurrence points to no case in which
Washington permitted a conviction for “incident[al]
facilitat[ion].” Id. On the contrary, numerous cases indicate
that Washington requires accomplices to actively participate
in the underlying crime. See, e.g., State v. Luna, 862 P.2d
620, 623 (Wash. Ct. App. 1993) (“A defendant is not guilty
as an accomplice unless he has associated with and
participated in the venture as something he wished to happen
and which he sought by his acts to make succeed.” (emphasis
added)); State v. Clemmons, No. 40847-3-II, 2012 WL
2366895, at *6 (Wash. Ct. App. June 22, 2012) (finding that
a woman charged with rendering criminal assistance could
not have known a man had committed murder because the
government did not prove the woman knew that the man had
“actively participated in the murders as an accomplice”
46 ALFRED V. GARLAND
(emphasis added)); State v. Gobena, No. 63174-8, 2010 WL
1541478 (Wash. Ct. App. Apr. 19, 2010) (upholding
conviction as an accomplice “[b]ecause the State presented
ample evidence establishing that [the defendant] was not
only present at the crime scene but also actively assisting the
principal” (emphasis added)). Indeed, in an opinion issued
after Rosemond, the Washington Supreme Court could find
“no Washington case upholding . . . liability . . . where the
accused did not actively participate in the immediate
physical impetus of harm.” State v. Bauer, 329 P.3d 67, 73
(Wash. 2014) (emphasis added). Thus, even if the
concurrence is correct and “the knowledge and intent
standards amount to the same thing” only in the “subset of
aiding and abetting cases involving active participation in
the actual criminal conduct,” Concurring Op. at 76, all
Washington cases would fall into such a subset.10
V. EFFECT ON PRECEDENT
In Valdivia-Flores, we concluded that Washington had
“codifie[d] the distinction between intent and knowledge
and ma[de] plain that knowledge is a less demanding mens
rea requirement.” 876 F.3d at 1207. We did not consider
10
Because Washington courts do not convict accomplices for incidental
facilitation of a crime, we need not decide the threshold question the
concurrence raises and that Rosemond left open: whether knowledge of
a crime establishes intent to aid and abet when the defendant’s
participation in a crime was incidental. See Rosemond, 572 U.S. at 77
n.8. That said, we note that the line between incidental facilitation and
active participation is a blurry one and that “courts have never thought
relevant the importance of the aid rendered.” Rosemond, 572 U.S. at 75.
Aiding and abetting “comprehends all assistance rendered by words,
acts, encouragement, support, or presence.” Id. at 73 (quoting Reves v.
Ernst & Young, 507 U.S. 170, 178 (1993)); see also United States v.
Delgado, 972 F.3d 63, 74–78 (2d Cir. 2020).
ALFRED V. GARLAND 47
Rosemond, nor did we conduct any survey of generic
accomplice liability law. After reviewing those sources, we
have now explained why we disagree with Validivia-
Flores’s core premise that there is a material difference
between intent and knowledge in this context. Rosemond’s
discussion of the intent requirement to prove federal aiding
and abetting law emphasized the “advance knowledge” of
the putative accomplice, 572 U.S. at 78, and is consistent
with Washington’s required proof that the defendant “acted
with knowledge that his or her conduct would promote or
facilitate the crime [charged],” Cronin, 14 P.3d at 757. We
thus overrule Valdivia-Flores.
To the extent that it remains good law, we overrule
United States v. Franklin for the same reasons. 904 F.3d 793
(9th Cir. 2018), abrogated on other grounds by Shular v.
United States, 140 S. Ct. 779 (2020). Although Franklin
reaffirmed Valdivia-Flores, albeit on broader grounds, it
also failed to consider Rosemond. See Franklin, 904 F.3d at
799 (“if we also look outside federal law to define generic
aiding and abetting liability for purposes of the ACCA, we
reach the same result as under Valdivia-Flores’s narrower,
federal-law-centered, approach”). Franklin concluded that
Washington was an outlier because it allowed conviction of
an accomplice who merely knew “that a crime is being
committed or is about to be committed.” Franklin, 904 F.3d
at 799 (internal quotation marks omitted) (emphasis added).
As we have pointed out repeatedly, this is an incorrect
characterization of Washington law. See Cronin, 14 P.3d at
758.11
11
The concurrence claims that we have threatened the validity of United
States v. Dinkane, 17 F.3d 1192 (9th Cir. 1994). Concurring Op. at 82.
48 ALFRED V. GARLAND
VI. CONCLUSION
We hold that second-degree robbery under Wash. Rev.
Code § 9A.56.190 is a categorical match with generic theft.
Accordingly, we conclude that Alfred has committed an
aggravated felony and deny his petition for review.
PETITION DENIED.
We have not. The concurrence has confused federal law with federal
generic law. The categorical approach compares state law with generic
law, not federal statutory law. See Taylor, 495 U.S. at 598–99. In
defining a generic federal offense, federal statutory law is but one piece
of the puzzle. See Garcia-Jimenez, 807 F.3d at 1084 (“A court applying
categorical analysis ordinarily surveys a number of sources—including
state statutes, the Model Penal Code, federal law, and criminal law
treatises—to establish the federal generic definition of a crime.”).
Although the concurrence observes that “we have long recognized” that
an aider and abettor must have knowledge of “each essential element of
the crime,” Concurring Op. at 81 (quotation omitted and emphasis
added), many other courts have not. See, e.g., State v. Ivy, 350 N.W. 2d
622, 628 (Wis. 1984); Cook v. State, 86 S.W.3d 916, 923–24 (Ark.
2002); State v. Kimble, No. 06 MA 190, 2008 WL 852074, at *8 (Ohio
Ct. App. Mar. 17, 2008). By defining generic law broadly enough to
encompass aiding and abetting schemes that differ from our precedent
construing a particular federal statute, we do not overrule that precedent.
Instead, we merely recognize that our view of aiding and abetting in
Dinkane does not define generic law for purposes of the categorical
analysis.
ALFRED V. GARLAND 49
COLLINS, Circuit Judge, with whom CALLAHAN and
BADE, Circuit Judges, join as to Parts I and II, and with
whom VANDYKE, Circuit Judge, joins as to Part III,
concurring in the judgment in part and dissenting in part:
The question in this case is whether an alien’s conviction
for second-degree robbery in violation of Washington
Revised Code §§ 9A.56.190 and 9A.56.210, and for which
the sentence of imprisonment was more than one year,
counts as an “aggravated felony” rendering the alien
removable under § 237(a) of the Immigration and
Nationality Act (“INA”). I agree with the votes of a majority
of the court that the answer to that question is yes. And
because Petitioner McKenzy Alii Alfred was convicted of
second-degree robbery under those Washington statutes in
2018 and was sentenced to 15 months in prison on that
charge, he was convicted of an “aggravated felony” and was
properly found to be removable on that basis. 1 But I disagree
with, and therefore dissent from, most of the reasoning in the
lead opinion. I concur only in the judgment.
I
Section 237(a) of the INA provides that “[a]ny alien . . .
in and admitted to the United States shall, upon the order of
the Attorney General, be removed if the alien is within one
or more” of certain enumerated “classes of deportable
1
Alfred was also simultaneously convicted of two additional counts of
attempted robbery in violation of Washington Revised Code
§§ 9A.28.020, 9A.56.190, and 9A.56.210, and he received identical
concurrent sentences of 15 months on those counts as well. Because
Alfred is removable if any one of these three convictions counts as an
aggravated felony, I focus my analysis on his robbery conviction rather
than his attempted robbery convictions.
50 ALFRED V. GARLAND
aliens.” See 8 U.S.C. § 1227(a). Among these classes of
deportable aliens are those who have committed any of the
various “[c]riminal offenses” described in § 237(a)(2). Id.
§ 1227(a)(2) (heading). In particular, § 237(a)(2)(A)(iii)
provides that “[a]ny alien who is convicted of an aggravated
felony at any time after admission” is “deportable.” Id.
§ 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA, in turn,
contains a very lengthy definition of the term “aggravated
felony” that includes 21 main alternative categories of
criminal offenses. See id. § 1101(a)(43). Under the final
sentences of § 101(a)(43), any offense falling within one of
these 21 categories counts as an “aggravated felony”
regardless of “whether in violation of Federal or State law”
and “regardless of whether the conviction was entered
before, on, or after” September 30, 1996. See 8 U.S.C.
§ 1101(a)(43); see also Pub L. No. 104-208, Div. C,
§ 321(b), 110 Stat. 3009, 3009-628 (Sept. 30, 1996).
The relevant category at issue here is set forth in
§ 101(a)(43)(G), which defines as an aggravated felony “a
theft offense (including receipt of stolen property) . . . for
which the term of imprisonment [is] at least one year.” See
8 U.S.C. § 1101(a)(43)(G). 2 Determining whether the “term
of imprisonment” is “at least one year” is easy enough—one
needs only to look at the relevant documents showing the
sentence and judgment in the criminal case. See Alberto-
Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000) (holding
that “the phrase ‘for which the term of imprisonment [is at
least] one year’” in § 101(a)(43)(G) “refer[s] to the actual
sentence imposed by the trial judge”). Given that the
sentence for Alfred’s robbery conviction was 15 months, this
2
The statutory text contains an obvious scrivener’s error in that it
erroneously omits the verb “is.”
ALFRED V. GARLAND 51
requirement of § 101(a)(43)(G) is plainly satisfied here. The
only remaining question is whether that robbery conviction
counts as one for a “theft offense.”
Because removability under the INA turns on whether
Alfred has been “convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii)
(emphasis added), of a “theft offense,” id. § 1101(a)(43)(G)
(emphasis added), the statutory language plainly
“predicate[s] deportation ‘on convictions, not conduct,’”
Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (citation
omitted). As a result, our task is not to “examin[e] whether
an individual’s actions meet a federal standard . . . , but only
whether the individual ‘has... been convicted of an offense’
that does so.” Pereida v. Wilkinson, 141 S. Ct. 754, 762
(2021) (citation omitted). Accordingly, the INA calls for a
“categorical approach,” which requires the court to
determine “whether ‘the state statute defining the crime of
conviction’ categorically fits within the ‘generic’ federal
definition of a corresponding aggravated felony.”
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citation
omitted).
The INA, however, does not define the crucial phrase
“theft offense.” Accordingly, we must “interpret that phrase
using the normal tools of statutory interpretation.” Esquivel-
Quintana v. Sessions, 581 U.S. 385, 391 (2017). Given that
“‘[e]lements’ are the ‘constituent parts’ of a crime’s legal
definition,” Mathis v. United States, 579 U.S. 500, 504
(2016) (citation omitted); see also Torres v. Lynch, 578 U.S.
452, 457 (2016) (“The substantive elements primarily define
the behavior that the statute calls a ‘violation’ of federal law”
(simplified)), the INA’s use of the phrase “theft offense”
must be understood as referring to the elements of the
generic concept of “theft,” i.e., “the offense [of theft] as
commonly understood,” Descamps v. United States, 570
52 ALFRED V. GARLAND
U.S. 254, 257 (2013). Our task, then, under the categorical
approach, “focus[es] solely on whether the elements of the
crime of conviction sufficiently match the elements of
generic [theft], while ignoring the particular facts of the
case.” Mathis, 579 U.S. at 504 (emphasis added); see also
Descamps, 570 U.S. at 257 (stating that the categorical
approach requires courts to “compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the ‘generic’ crime”).
Applying this comparison-of-elements approach to
second-degree robbery under Washington law makes this an
easy case. We undertook exactly that inquiry in United
States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014),
where we held that “a conviction for Washington second-
degree robbery, where accompanied by a sentence of at least
one year, qualifies as an ‘aggravated felony’” under
§ 101(a)(43)(G). Id. at 1203. Specifically, we held that the
federal generic understanding of “theft” has four elements,
namely, “(1) the taking of (2) property (3) without consent
(4) with the intent ‘to deprive the owner of rights and
benefits of ownership.’” Id. at 1202 (citation omitted).
Reviewing the applicable Washington law, we held that the
elements of second-degree robbery under Washington
Revised Code §§ 9A.56.190 and 9A.56.210 are “(1) taking
(2) personal property (3) from another person or from
another’s immediate presence (4) against his or her will
(5) by force or threatened force (6) with the specific intent to
steal.” Id. at 1202–03 (citation omitted). 3 Having thus set
3
Under § 9A.56.210, one commits second-degree robbery “if he or she
commits robbery” as that term is defined in § 9A.56.190. First-degree
robbery, by contrast, requires proof of additional elements that increase
ALFRED V. GARLAND 53
forth the relevant elements that define both offenses, we
found a categorical match inasmuch as all of the elements of
federal generic theft are necessarily met if the elements of
the more serious offense of Washington second-degree
robbery are satisfied:
A comparison of the elements of the statute
to the elements of generic theft makes clear
that the “full range of conduct” criminalized
by Washington second-degree robbery falls
within the meaning of generic theft in that
both require (1) the taking of (2) personal
property (3) without consent and (4) with the
specific intent to steal. One leading treatise
states that “[r]obbery consists of all [the]
elements of larceny . . . plus two additional
requirements”: that the property be taken
from the victim’s presence, and that the
taking be accomplished by means of force or
fear.
Id. at 1203 (alterations in original) (citation omitted).
The lead opinion agrees with Alvarado-Pineda on this
point, and it also notes that “[n]either Alfred nor the
government has questioned the correctness of that decision.”
See Opin. at 14. In my view, that should be the end of the
inquiry. As defined by its generic elements, the federal
generic concept of a “theft offense” under § 101(a)(43)(G)
unquestionably embraces the crime of Washington second-
the seriousness of the offense, such as the use of a “firearm” or the
infliction of “bodily injury.” See WASH. REV. CODE
§ 9A.56.200(1)(a)(ii), (iii).
54 ALFRED V. GARLAND
degree robbery, as that offense is defined by the elements set
forth in § 9A.56.190. Because Alfred’s sentence exceeded
one year, that “theft offense” was an “aggravated felony.”
See 8 U.S.C. § 1101(a)(43)(G). Alfred therefore was
“convicted of an aggravated felony,” and he was properly
found to be removable. Id. § 1227(a)(2)(A)(iii). On that
basis, the petition for review should be denied.
II
I hasten to add that the straightforward analysis I have
set forth above is contrary to our prior decision in United
States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017).
There, we held that, in “determin[ing] whether an offense
qualifies as an ‘aggravated felony’” under the INA, the
categorical approach requires us to go beyond simply
comparing the elements of the generic federal offense and
the particular state offense. Id. at 1206. We reasoned that,
because “aiding and abetting liability” is “implicit” in “every
criminal charge,” the categorical approach requires us also
to determine whether the “definition of aiding and abetting
liability” under the relevant state’s law “is essentially the
same as the federal definition so that they do, in fact, match
categorically.” Id. at 1207 (emphasis added). Consequently,
under Valdivia-Flores, a mismatch in aiding and abetting
theories under state and federal law could be enough to find
that the categorical approach has not been satisfied, even
though the relevant state offense’s elements are a categorical
match to the elements of the particular federal generic
“aggravated felony.” For multiple reasons, I respectfully
disagree with Valdivia-Flores on this point, and I would
overrule that aspect of the decision.
ALFRED V. GARLAND 55
A
Nothing in the language of the INA supports Valdivia-
Flores’s view that, in determining whether a particular state
offense qualifies as an aggravated felony, courts must
undertake a comparative analysis of state and federal
concepts of aiding and abetting liability. On the contrary,
consideration of the statutory text leads to the opposite
conclusion.
As I have explained, the text of the INA requires the
court to determine whether the alien has been “convicted of
an aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), with
the relevant felony here being a “theft offense,” id.
§ 1101(a)(43)(G). Because crimes are defined by their
elements, see Mathis, 579 U.S. at 504, the INA’s references
to a particular “felony” or “offense” must be understood as
referring only to the elements of the relevant generic federal
crime or the relevant state offense. See supra at 51–52. And
that is exactly what the Supreme Court has stated, time and
again. See, e.g., Mathis, 579 U.S. at 504 (explaining that the
categorical approach “focus[es] solely on whether the
elements of the crime of conviction sufficiently match the
elements” of the relevant generic offense (emphasis added));
id. at 510 (“We consider only the elements of the offense,
without inquiring into the specific conduct of this particular
offender.” (simplified) (emphasis added)). Indeed, the Court
in Mathis aptly noted that this “simple point” has become a
“mantra” in its categorical-approach decisions, including
those “in immigration cases.” Id. at 510 & n.2.
Mathis further underscored this “elements-only”
approach by drawing a sharp distinction between the
“elements” of a prior offense and “‘alternative means’ of
commission” of an offense. Id. at 514 (citation omitted).
56 ALFRED V. GARLAND
The “elements” of a prior offense tell us “what a jury
‘necessarily found’ to convict a defendant (or what he
necessarily admitted),” because each of those elements must
be unanimously found by the jury beyond a reasonable
doubt. Id. at 515 (emphasis added) (citation omitted); see
also Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020); In
re Winship, 397 U.S. 358, 364 (1970). By contrast, an
alternative “means” of committing an offense is a “non-
elemental fact” that “is by definition not necessary to support
a conviction.” Mathis, 579 U.S. at 515 (simplified). Thus,
for example, Mathis noted that Iowa’s burglary law required
the “burgled location” to be a qualifying “premises,” but it
did not require the jury to agree which of the various types
of “premises” the particular location was (e.g., a “building,
other structure, or vehicle”). Id. at 517–18. In that example,
the alternative ways of satisfying the “premises” element
were therefore “means” and not “elements.” Id. Having
drawn this clear distinction between elements and means,
Mathis squarely held that the categorical approach
“disregards the means by which the defendant committed his
crime, and looks only to that offense’s elements.” Id. at 517.
Of course, where, as in Mathis, the listed means (i.e.,
building, structure, or vehicle) are alternative methods of
proving a particular element (i.e., premises), that
overarching element subsumes those alternative means, and
in that sense those means will still be relevant in ascertaining
the sweep of that element in undertaking the categorical
approach’s elements-only comparison. Thus, in Mathis, the
inclusion of “vehicles” in the Iowa burglary statute’s
premises element meant that that element did not
categorically match the corresponding element of the federal
generic offense, which “requires unlawful entry into a
building or other structure.” Id. at 507 (citation and internal
ALFRED V. GARLAND 57
quotation marks omitted). But the requisite categorical
analysis under Mathis remains strictly an “elements-only
inquiry.” Id. at 510.
Mathis’s reasoning refutes Valdivia-Flores’s view that
the categorical approach requires us to undertake a
comparison of state and federal aiding and abetting theories.
It is well settled, as a matter of both federal law and
Washington law, that aiding and abetting is merely a means
of finding principal liability, that it does not itself constitute
an element of the underlying offense, and that jurors need
not unanimously agree as to whether a defendant is guilty as
a principal or as an aider and abettor. See United States v.
Garcia, 400 F.3d 816, 818–20 (9th Cir. 2005) (holding that,
because “[a]iding and abetting is simply one means of
committing a single crime,” it “does not matter whether
some jurors found that [the defendant] performed these acts
himself, and others that he intended to help someone else
who did”); State v. Hoffman, 804 P.2d 577, 605 (Wash.
1991) (holding that Washington law does not require “that
jurors be unanimous as to the manner of an accomplice’s and
a principal’s participation as long as all agree that they did
participate in the crime”). 4 When aiding and abetting is
4
See also Young v. United States, 22 F.4th 1115, 1122 (9th Cir. 2022)
(“[A]iding and abetting is not a separate offense; it is simply one means
of committing the underlying crime.” (citation omitted)); United States
v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007) (“[A]iding and abetting is
not a separate and distinct offense from the underlying substantive crime,
but is a different theory of liability for the same offense.” (citation
omitted)); United States v. Ferguson, 676 F.3d 260, 279 (2d Cir. 2011)
(noting that the court had previously “suggested that a jury is unanimous
even if some jurors convicted on a theory of principal liability and others
on aiding and abetting” and extending that principle to other alternative
theories of principal liability).
58 ALFRED V. GARLAND
invoked, it does not displace the elements of the underlying
offense, and the jury must still find that, as to either or both
of the co-participants, each of the elements of that offense
have been met. See, e.g., United States v. Mann, 811 F.2d
495, 497 (9th Cir. 1987) (noting that, even when the
Government relies on an aiding and abetting theory, it “must
prove that someone committed the underlying crime”); see
also United States v. Sutcliffe, 505 F.3d 944, 959 (9th Cir.
2007) (“[A] defendant can only be convicted for aiding and
abetting where some underlying crime has been
committed.”); State v. Carothers, 525 P.2d 731, 736 (Wash.
1974) (noting that, when aiding and abetting is invoked,
“[t]he elements of the crime remain the same”), overruled on
other grounds by State v. Harris, 685 P.2d 584, 587 (Wash.
1984); State v. Slater, 476 P.2d 719, 721 (Wash. Ct. App.
1970) (holding that, when the prosecution relies on aiding
and abetting, it is still “required to prove that a crime had
actually been committed”); see generally WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.3(c) (3d ed.
2022 update) (stating that “the guilt of the principal must be
established at the trial of the accomplice as a part of the proof
on the charge against the accomplice”). These
considerations underscore that the requirements of aiding
and abetting liability do not qualify as “elements” of the
underlying offense for purposes of the categorical analysis.
See Mathis, 579 U.S. at 517–18 (stating that, if under the
applicable substantive law, the “jury need not agree” on a
particular point, that point is not an “element” for purposes
of the categorical approach). It follows that, under Mathis,
we must “disregard[]” aiding and abetting liability in
determining whether there is a categorical match between a
state offense and a federal generic offense. Id. at 517.
ALFRED V. GARLAND 59
Moreover, unlike in Mathis, the issue of aiding and
abetting liability is not subsumed into one of the constituent
elements of the underlying predicate offense. In Mathis, the
particular range of means at issue (i.e., building, structure, or
vehicle) involved alternative options for satisfying the
premises element of the Iowa burglary statute. As a result,
they were still relevant to the categorical approach’s
elements-only analysis, because they necessarily informed
the understanding of the substantive breadth of that premises
element. See supra at 55–57. The same cannot be said of
aiding and abetting liability. When aiding and abetting has
been invoked as a theory of liability with respect to a
particular defendant, it requires the prosecution to show that
(1) the underlying offense was committed—i.e., each
element of the offense is satisfied as to one or both of the co-
participants; and (2) the particular defendant is liable for that
offense under the relevant jurisdiction’s aiding and abetting
principles. 5 See supra at 57–58. Because the categorical
approach focuses only on the elements of the charged
offense (viz., component (1) listed above), it disregards
aiding and abetting liability (viz., component (2) listed
above). As Mathis explained, “Congress well knows” how
to require consideration of “non-elemental facts,” namely,
by using “different language” from a mere reference to a
type of offense. 579 U.S. at 511. Here, there is no such
distinct language in the INA that could be construed as
referring to any relevant “non-elemental facts,” such as
whether the defendant’s liability as a principal rests on
aiding and abetting. Congress is presumed to know the law,
5
The lead opinion is therefore wrong in contending that, under my view,
the invocation of aiding and abetting liability “does not affect what a jury
must find to convict a defendant.” See Opin. at 18.
60 ALFRED V. GARLAND
see Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072
(2020), and it therefore was well aware that every
jurisdiction uses some form of aiding and abetting liability
as an alternative means of principal liability for any given
offense. But Congress nonetheless used no language
suggesting that it intended the INA’s applicability to turn on
whether a conviction was or was not based on aiding and
abetting, much less that it turns on what particular version of
aiding and abetting liability a jurisdiction employs.
The plurality 6 nonetheless seems to think that, when
aiding and abetting liability is invoked, the requirements of
that doctrine (or at least the mental state requirement)
effectively serve as “elements” for purposes of the
categorical approach and therefore must be considered.
According to the plurality, “because accomplice liability is
one means of satisfying an element necessary to support a
conviction, we must consider it.” Opin. at 21. The
plurality’s premise appears to be that, because the elements
of the underlying offense might be proved only as to the
third-party perpetrator and not as to the defendant, the
requirements of the aiding and abetting doctrine that renders
the defendant liable for the perpetrator’s offense effectively
serve as the “elements” of the defendant’s offense. Although
there may be certain contexts in which the plurality’s
analogy makes sense, 7 it remains inapplicable to the
6
Although the lead dissent agrees with the plurality’s bottom-line
conclusion “that, under the categorical approach,” the court “must
consider accomplice liability in our categorical analysis,” it does not join
or endorse the plurality’s reasoning on that score. See Dissent at 87–88.
7
For example, in a simple case in which the prosecution proceeds solely
on the theory that the defendant was an aider and abettor to a crime
ALFRED V. GARLAND 61
categorical approach called for by the INA, which focuses
only on whether the particular crime that is listed on the
defendant’s judgment of conviction qualifies as a “theft”
offense. As I have explained, that inquiry calls only for a
comparison of the elements of that theft offense to the
elements of federal generic theft. See supra at 51–56. The
simple language Congress used—i.e., whether the defendant
has been “convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii), of a
“theft offense,” id. § 1101(a)(43)(G)—ignores the subject of
aiding and abetting and instructs us to ask whether the
particular “offense” of conviction listed on the defendant’s
conviction documents—here, second-degree robbery under
Washington Revised Code §§ 9A.56.190 and 9A.56.210—is
a “theft” offense. Because offenses are defined by their
elements, that would naturally be understood as an
instruction to examine the elements of second-degree
robbery and to compare them to the elements of generic
theft. Congress did not ask us to go beyond examining the
particular offense of conviction and to determine whether
(due to the availability of aiding and abetting liability) the
underlying conduct that led to the defendant’s conviction
may not itself have constituted “theft.” See Descamps, 570
U.S. at 263 (“[T]he categorical approach’s central feature
[is] a focus on the elements, rather than the facts, of a
crime.”).
In nonetheless insisting that an elements-based approach
embraces aiding and abetting, the plurality reasons that the
committed by another person, the elements of the defendant’s offense,
for purposes of the constitutional right to a jury finding as to each
element of the offense, will extend to the elements of aiding and abetting
liability. See Solis v. Garcia, 219 F.3d 922, 926–27 (9th Cir. 2000)
(citing Winship, 397 U.S. at 364).
62 ALFRED V. GARLAND
general availability of the alternative of aiding and abetting
liability is equivalent to the availability of alternative means
for proving a given element within the definition of a
particular offense. Thus, in the plurality’s view, (1) the
ability to invoke aiding and abetting (with its allegedly lesser
mens rea) is no different from (2) a hypothetical statute in
which the prosecution may prove the underlying theft
offense itself through either of two alternative mental states.
See Opin. at 21–22. Treating these two circumstances
differently, the plurality concludes, “makes no sense.” See
Opin. at 23. But this is just another way of saying that
Congress should have drawn a line that gives controlling
weight to the defendant’s underlying conduct, rather than to
what the particular offense of conviction happens to be.
Congress chose the latter line, and so the focus is limited to
a comparison of the elements of the particular offense of
conviction. Options for proving one of the constituent
elements within the definition of a particular offense must be
considered in that elements-only analysis, but the general
availability of aiding and abetting liability is not relevant.
Noting that the elements-only approach allows a court to
determine “what facts are necessarily established by a
conviction for the state offense,” Moncrieffe, 569 U.S. at 205
n.11 (emphasis added), the plurality worries that, absent an
additional inquiry into state aiding and abetting law, a court
would be unable to draw any conclusions as to what the
individual defendant’s underlying conduct necessarily was.
See Opin. at 23–24. According to the plurality, the
defendant’s conviction of a “theft offense” might just mean
that someone else whom the defendant aided committed a
theft offense and not that the defendant’s conduct actually
amounted to theft. See Opin. at 23. Once again, the plurality
erroneously assumes that the statute’s focus is on defining
ALFRED V. GARLAND 63
and delimiting the defendant’s personal underlying conduct.
But that is not what the statute says. As I have repeatedly
explained, it merely asks whether the defendant has been
“convicted,” 8 U.S.C. § 1227(a)(2)(A)(iii), of a “theft
offense,” id. § 1101(a)(43)(G). That simple language
merely instructs the court to ascertain whether the particular
offense that is listed on the alien’s conviction documents
counts as a “theft offense” under the familiar elements-only
approach. It does not call for the court to “traverse the
metaphysical line between” principals and accomplices “as
a way of distinguishing degrees of culpability.” See Opin. at
19–20.
Accordingly, in determining whether a given state
criminal statute qualifies as a “theft offense” within the
meaning of the INA, all that matters is whether the elements
of the state offense are a categorical match for federal
generic “theft.” Principles of aiding and abetting liability do
not constitute elements of that underlying offense and are
therefore irrelevant.
B
Valdivia-Flores nonetheless appeared to assume,
without discussion, that a categorical-match inquiry into
aiding and abetting theories was required by Gonzalez v.
Duenas-Alvarez, 549 U.S. 183, 189 (2007). See Valdivia-
Flores, 876 F.3d at 1207. The plurality’s opinion makes this
claim explicitly (as does Judge VanDyke in his dissent). See
Opin. at 14–18; see also VanDyke Dissent at 97–102. But
Duenas-Alvarez did no such thing.
In Duenas-Alvarez, the Supreme Court addressed
whether we had been correct in “holding that ‘aiding and
abetting’ a theft is not itself a crime that falls within the
generic definition of theft” for purposes of INA
64 ALFRED V. GARLAND
§ 101(a)(43)(G). See 549 U.S. at 188–89. The Court
concluded that we had erred and that the “generic definition
of theft” under § 101(a)(43)(G) does include “one who aids
or abets a theft” either “during [or] before the crime.” Id. at
189–90. 8 As the Court explained, because the laws of the
federal Government and of all 50 States treat aiders and
abettors as equivalent to principals, the INA’s reference to a
generic “theft offense” necessarily “covers such ‘aiders and
abettors’ as well as principals.” Id. at 190. In other words,
the “criminal activities” of such “aiders and abettors of a
generic theft” must be understood as “themselves fall[ing]
within the scope of the term ‘theft’ in the federal statute.”
Id. Nothing in the analysis set forth earlier is inconsistent
with Duenas-Alvarez’s holding that the generic federal
“theft offense” includes a theft offense that may have rested
on an aiding and abetting theory. On the contrary, by
“disregard[ing]” such “non-elemental” considerations as
aiding and abetting liability, the categorical approach’s
“elements-only inquiry” ensures that the term “theft
offense” will cover any aiders and abettors who have been
convicted of a qualifying “theft offense” under the elements
test. Mathis, 579 U.S. at 510, 515, 517.
The plurality, however, concludes that a categorical-
match comparison of aiding and abetting theories is required
as a result of the Supreme Court’s analysis of Duenas-
Alvarez’s alternative argument challenging the particulars of
California’s approach to aiding and abetting. See Opin. at
14–15. That is wrong. In the cited discussion, the Court
8
As the Court recognized, the same cannot be said of “accessories after
the fact,” who are not similarly uniformly treated as equivalent to a
principal offender. See Duenas-Alvarez, 549 U.S. at 189–90. That
distinction is not relevant here.
ALFRED V. GARLAND 65
addressed Duenas-Alvarez’s contention that, even
conceding that the phrase “theft offense” must ordinarily be
understood as including aiders and abettors of theft,
“California’s version of the doctrine” of aiding and abetting
was so “unlike that of most other States”—so “special,” in
the Court’s phrasing—that “it criminalizes conduct that most
other States would not consider ‘theft.’” Duenas-Alvarez,
549 U.S. at 191. Taking Duenas-Alvarez’s argument at face
value, the Court proceeded to reject it on the straightforward
ground that its predicate assumption was wrong: Duenas-
Alvarez, the Court held, had simply failed to “show that
California’s law is somehow special.” Id. Nothing in the
Court’s holding or analysis on this point suggests that it was
even undertaking—much less mandating—a categorical-
match analysis between federal generic aiding and abetting
principles and California aiding and abetting principles. The
Court conspicuously did not undertake to identify, as the
plurality does, the elements of “generic accomplice liability”
and to then compare them to the elements of the relevant
State’s aiding and abetting liability. See Opin. at 24–46. It
simply rejected, as unsupported, Duenas-Alvarez’s
underlying premise that California was some sort of extreme
outlier on aiding and abetting doctrine. See Duenas-Alvarez,
549 U.S. at 193 (noting that, even if California’s aiding and
abetting caselaw arguably contained some “expansive
concept[s],” those concepts did not “extend significantly
beyond the concept as set forth in the cases of other States”).
Moreover, because the Court rejected that premise, the Court
never addressed what would have followed if Duenas-
Alvarez had been correct in his analysis of California law.
66 ALFRED V. GARLAND
Put simply, Duenas-Alvarez cannot bear the weight the
plurality places on it. 9
C
There are additional considerations that further confirm
that the categorical approach does not require us to
undertake a comparative analysis of federal and state aiding
and abetting principles.
First, the practical implications of Valdivia-Flores’s
approach are so nonsensical that we should not attribute
them to Congress unless the statutory language requires that
result (which it does not). In Valdivia-Flores, we found a
categorical mismatch between Washington aiding and
abetting liability and generic federal aiding and abetting
liability, and we noted that one potential consequence of
finding that mismatch was that “no Washington state
conviction can serve as an aggravated felony at all.” 876
F.3d at 1209 (emphasis added). We nonetheless rejected the
Government’s “pragmatic argument” that it “cannot have
been Congress’s intent” to thus exempt all Washington
felons from this aspect of immigration law, because we
concluded that, as an “inferior court,” we were bound to
accept that consequence of the categorical approach. Id. at
1208–09. However, for the reasons I have explained,
nothing in Supreme Court precedent requires us to undertake
9
Judge VanDyke concludes that Duenas-Alvarez must be understood as
mandating a categorical-approach comparison of aiding and abetting
theories, because the Court in that case did not sua sponte raise the
threshold question of whether any such comparison was required but
instead decided the case on the narrower ground that Duenas-Alvarez’s
argument failed on its own terms. In my view, we can infer nothing from
the fact that the Court did not reach that broader issue—except that it
thereby remains open for us to reach it.
ALFRED V. GARLAND 67
a categorical-match analysis of aiding and abetting theories
as an aspect of the categorical approach. And I find it
altogether impossible to believe that, by simply instructing
us to determine whether aliens have convictions for such
offenses as “illicit trafficking in a controlled substance,”
“illicit trafficking in firearms,” a “theft offense,” a “burglary
offense,” “murder,” “forgery,” and “perjury,” 8 U.S.C.
§ 1101(a)(43)(A), (B), (C), (G), (R), (S), Congress was
supposedly thereby instructing us to assess the adequacy of
each State’s aiding and abetting theories and then, if we
found them inadequate, to grant state-wide exemptions from
those provisions of the INA to all criminal aliens in the
relevant States. Surely if Congress had meant to establish
such a general regime of wholesale state-by-state exemption
from the criminal alien provisions of the INA, it would have
used language more clearly indicative of such an
extraordinary result. See AMG Cap. Mgmt., LLC v. FTC,
141 S. Ct. 1341, 1349 (2021) (“Congress does not hide
elephants in mouseholes.” (simplified)).
Second, Valdivia-Flores’s approach would produce a
very peculiar anomaly within the INA itself. Most of INA
§ 101(a)(43)’s alternative “aggravated felony” definitions
turn on a whole-offense comparison of elements of the sort
described above with respect to the “theft offense” here. But
there are some in which an offense can be designated as an
“aggravated felony” based on the presence of a single
element. For example, one enumerated category of
“aggravated felony” is a “crime of violence,” which is
defined as “an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C. § 16(a) (emphasis
added) (cross-referenced in INA § 101(a)(43)(F)). Because,
in such a case, the inquiry turns only on whether the state
68 ALFRED V. GARLAND
offense contains that one particular element, no other feature
of the state offense (including its applicable theory of aiding
and abetting liability) is relevant. See Amaya v. Garland, 15
F.4th 976, 985–86 (9th Cir. 2021) (holding that Valdivia
Flores’s comparison of aiding and abetting theories does not
apply when the element-of-physical-force clause of the
definition of “crime of violence” is invoked (citing United
States v. Door, 917 F.3d 1146 (9th Cir. 2019)). The result
would be that we would not be required to undertake a
categorical-match comparison of aiding and abetting
theories in determining whether an alien is deportable for
having committed a “crime of violence,” but (under
Valdivia-Flores) we would have to undertake such a
comparison in the case of convictions involving “illicit
trafficking in a controlled substance,” “illicit trafficking in
firearms,” a “theft offense,” a “burglary offense,” “murder,”
“forgery,” and “perjury.” 8 U.S.C. § 1101(a)(43)(A), (B),
(C), (G), (R), (S). It is extremely unlikely that Congress
intended such a peculiar disparity in approach when it
created its list of aggravated felonies in INA § 101(a)(43).
Third, there is no reason why Valdivia-Flores’s (and the
plurality’s) expansion of the categorical approach to include
alternative theories of principal liability would be limited to
aiding and abetting. Next up, we will presumably have to
consider whether a given State’s version of Pinkerton
liability 10 matches federal generic Pinkerton liability and
10
Under Pinkerton v. United States, 328 U.S. 640 (1946), a defendant
may “be held liable for a substantive offense committed by a co-
conspirator as long as the offense occurred within the course of the
conspiracy, was within the scope of the agreement, and could reasonably
have been foreseen as a necessary or natural consequence of the unlawful
agreement.” See United States v. Alvarez-Valenzuela, 231 F.3d 1198,
ALFRED V. GARLAND 69
whether a state’s version of causing-a-violation liability11
matches a federal generic version. Once again, it seems hard
to believe that, merely by instructing us to determine
whether Alfred’s judgment of conviction was for a “theft
offense,” Congress was thereby requiring us to undertake
such a comparative analysis of every alternative general
theory for criminal liability in a given jurisdiction. The more
sensible conclusion is that the INA ignores all such
background principles of principal liability and only asks us
to check whether, in light of its elements, the particular
offense listed on a given judgment qualifies as a “theft
offense.”
* * *
For all of these reasons, I would overrule Valdivia-
Flores to the extent that it requires a comparison of state and
federal aiding and abetting theories. The categorical
approach’s “elements-only inquiry” requires us to disregard
such non-elements and to instead compare only the elements
of the state offense and the federal generic offense. Because
it is undisputed that Alvarado-Pineda correctly found such a
1202 (9th Cir. 2000). As we have noted, “aiding-and-abetting liability
differs from Pinkerton liability,” and Pinkerton may allow for conviction
as a principal when aiding and abetting would not. See United States v.
Bingham, 653 F.3d 983, 997 (9th Cir. 2011).
11
As we explained in United States v. Armstrong, 909 F.2d 1238 (9th
Cir. 1990), the proof requirements for establishing liability under the
theory that the defendant “cause[d] an act to be done which if directly
performed by him or another would be an offense against the United
States,” see 18 U.S.C. § 2(b), are not identical to those for traditional
aiding and abetting under 18 U.S.C. § 2(a). See 909 F.2d at 1241
(holding that, “[d]espite this difference, however, courts have implied
both subsections of § 2 in a federal indictment, whether or not they have
been specifically charged”).
70 ALFRED V. GARLAND
categorical match between the elements of Washington
second-degree robbery and the elements of federal generic
theft, Alfred was convicted of a “theft offense.” Because his
sentence for that offense exceeded one year, his conviction
constitutes an “aggravated felony” and he was properly
found to be deportable and removable. His petition for
review must therefore be denied.
III
What I have said thus far is sufficient to dispose of the
case, and I therefore am not required to address whether
Washington aiding and abetting law is a categorical match
for federal generic aiding and abetting law. While I
therefore ultimately decline to address that specific issue, I
nonetheless feel compelled to note that, on the way to its
conclusion that Washington aiding and abetting law matches
federal generic aiding and abetting law, the majority makes
several statements about the scope of federal aiding and
abetting law under 18 U.S.C. § 2 that are contrary to well-
settled authority.
A
Before addressing the majority’s serious misstatements
about federal aiding and abetting under § 2, I cannot help
making a few preliminary observations about the peculiar
way in which the majority approaches its task of defining
generic aiding and abetting liability for purposes of applying
the categorical approach.
The majority’s articulation of federal generic aiding and
abetting liability largely ignores the conduct requirements
and instead focuses on the mental state requirement. As to
that issue, the majority notes that the States follow at least
four different approaches—some require “purpose”; others
ALFRED V. GARLAND 71
require only “knowledge”; others use the same mens rea as
for the underlying offense; and others employ the so-called
“natural and probable consequences doctrine.” See Opin. at
27–30. Noting that “a majority of jurisdictions use statutory
language that requires a showing of purpose or something
similar,” the majority “hold[s] that generic accomplice
liability requires a showing that the putative accomplice
intentionally aided or abetted another in the commission of
the crime.” See Opin. at 30, 35 (emphasis added). But
because the majority deems the terms “intent,” “purpose,”
and “knowledge” to be “largely synonymous” in the
“context” of aiding and abetting, the majority “also
conclude[s] that advance knowledge of the crime is
sufficient to support a conviction for generic accomplice
liability.” See Opin. at 30–31, 35–36. And, that means,
according to the majority, that the generic form of aiding and
abetting is “broad” and “encompass[es] jurisdictions that
require purposeful conduct, as well as those that require
accomplices to act with knowledge that their conduct will
promote or facilitate commission of the crime.” See Opin.
at 36. Moreover, based on the Supreme Court’s decision in
Duenas-Alvarez, the majority concludes that the “generic
definition of accomplice liability” also “encompasses
jurisdictions that use a natural and probable consequences
doctrine.” See Opin. at 36-37. And, of course, the derivative
mens rea approach will generally require at least knowledge
(which, as the majority notes, roughly corresponds to “the
concept of general intent” that is ordinarily the minimum
mens rea required for most offenses). See Opin. at 32. As a
result, all of the States’ disparate approaches to mens rea are
embraced within the majority’s expansive concept of
“generic accomplice liability.”
72 ALFRED V. GARLAND
Thus, in contrast to the typical categorical approach to
defining a given generic offense—in which a specific set of
minimum elements would be articulated—the majority
ultimately does not come up with a single formula for
generic aiding and abetting. Instead, the majority concocts
a multiple-alternatives approach that includes every variety
of the mens rea requirement that is currently in use. Given
that, by the end of section IV(B) of its opinion, the majority
has already defined generic aiding and abetting so broadly
and so eclectically that it includes all of the approaches
followed by all 50 States, I am not quite sure why it takes so
many additional pages to find a categorical match with
Washington law.
Ironically, the end result of the majority’s expansive
approach to defining generic aiding and abetting liability is
arguably the same as mine. That is, if (as the majority posits)
“generic aiding and abetting” is so broadly defined that
every alternative approach qualifies as a match, then the
ultimate outcome is the same as it would be if (as I have
argued) the entire step of comparing aiding and abetting
theories is simply omitted altogether. While I am gratified
with that bottom line result, the majority’s analysis
nonetheless is predicated on a seriously flawed intermediate
premise. Specifically, as I explain in the next section, the
majority is quite wrong in stating that, in the context of
aiding and abetting liability, purpose and knowledge are
“largely synonymous.”
B
In finding a categorical match between Washington and
federal generic aiding and abetting law, the majority makes
two key errors that directly bear on the scope of federal
aiding and abetting liability under 18 U.S.C. § 2. First, the
ALFRED V. GARLAND 73
majority contends that the construction of § 2 aiding and
abetting in Rosemond v. United States, 572 U.S. 65 (2014),
supports the majority’s erasure of the distinction between
intent and knowledge in the context of aiding and abetting
generally. Second, the majority also dramatically narrows
the applicability of Rosemond’s holding that, to qualify as
aiding and abetting under § 2, the defendant’s “inten[t] to
facilitate th[e] offense’s commission” “must go to the
specific and entire crime charged.” Id. at 76. The majority
seriously errs on both counts. And because we are sitting en
banc, the majority’s errors have now overturned settled law
in ways that may have a significant impact across the entire
federal criminal justice system in our circuit.
1
To set the majority’s errors in context, I begin with some
important background concerning the scope of aiding and
abetting liability under § 2.
One of the central problems of aiding and abetting law is
how to define the line between genuinely culpable assistance
in the commission of a particular offense and more
peripheral or attenuated conduct that might be said merely to
indirectly facilitate an offense. This concern is reflected in
the many hypotheticals mentioned on this subject in the
internal debates of the American Law Institute (“ALI”) that
preceded its adoption of the Model Penal Code. Would
aiding and abetting liability extend, for example, to a “utility
[that] provides telephone or telegraph services, knowing it is
used for bookmaking” or to a “vendor [who] sells with
knowledge that the subject of the sale will be used in the
commission of a crime”? As reflected in the ALI’s
discussions, there are at least two ways to address this crucial
line-drawing problem. One approach, which was ultimately
74 ALFRED V. GARLAND
adopted in the Model Penal Code, is to cabin aiding and
abetting liability by requiring proof that the defendant acted
with a highly culpable mental state. Thus, that Code allows
one who “aids” in the commission of an offense to be liable
as a principal only if he or she does so “with the purpose of
promoting or facilitating the commission of the offense.”
See MODEL PENAL CODE § 2.06(3)(a)(ii) (ALI 1985)
(emphasis added). A second approach, which was reflected
in an earlier draft of the Code, combined a less demanding
mental state of knowledge with more “rigorously drafted”
“conduct requirements.” See id. cmt. 6(c) (emphasis added).
Under this approach, it would suffice to show that the aider
and abettor “knowingly facilitated” the commission of a
crime, but the requisite facilitation had to be “substantial” or
to have involved “provid[ing] the means or opportunity for
the commission of the crime.” Id. (emphasis added).
The federal aiding and abetting statute, 18 U.S.C. § 2,
has long been construed as following the first approach—
that is, it combines a demanding mental state requirement
with a more broadly defined facilitation requirement. As the
Supreme Court explained in Rosemond, the aider and abettor
must be shown to have “intend[ed] to facilitate [the]
offense’s commission” in the sense that it is “‘something that
he wishes to bring about.’” 572 U.S. at 76–77 (quoting Nye
& Nissen v. United States, 336 U.S. 613, 619 (1949) (in turn
quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.
1938) (L. Hand, J.))). Moreover, it is not sufficient that the
defendant intended “to advance some different or lesser
offense”; “[i]nstead, the intent must go to the specific and
entire crime charged.” Id. at 76 (emphasis added). But this
demanding mental state requirement is paired with a fairly
expansive “affirmative-act requirement.” Id. at 74. To
establish the requisite facilitation of the offense, the
ALFRED V. GARLAND 75
Government only needs to show that the defendant’s actions
“facilitated one component” of the offense and the
“importance of the aid rendered” is not “relevant.” Id. at 74–
75. Indeed, the Court explained, “a person’s involvement in
the crime could be not merely partial but minimal too.” Id.
at 73. Given the “minimal” nature of the affirmative-act
requirement under federal aiding and abetting law, the
demanding scienter requirement plays an “important” role in
ensuring that the Government is not able to “sweep within
the drag-net of conspiracy [and abetting] all those who have
been associated in any degree whatever with the main
offenders.” United States v. Falcone, 109 F.2d 579, 581 (2d
Cir. 1940) (L. Hand, J.).
2
The majority’s decision today, however, wrongly
weakens § 2’s demanding mental state requirement in two
key respects.
a
First, the majority erroneously contends that, under
Rosemond’s description of § 2 aiding and abetting liability,
intent and knowledge are “largely synonymous,” and that, as
a result, there is “no significant daylight” between
Washington’s knowledge standard for aiding and abetting
liability and § 2’s intent standard as construed in Rosemond.
See Opin. at 31, 39; see also Opin. at 32–34, 39. 12 The
12
The majority confusingly refers to the causing-a-violation theory of
principal liability contained in § 2(b), see Opin. at 32, whereas
Rosemond construed and applied the more traditional aiding and abetting
liability embodied in § 2(a). See Rosemond, 572 U.S. at 68; see also
supra at 68–69 & n.11. The majority’s equating of knowledge and
76 ALFRED V. GARLAND
majority claims that its across-the-board equivalence
between knowledge and intent in the context of aiding and
abetting follows from Rosemond’s holding that “a person
who actively participates in a criminal scheme knowing its
extent and character intends that scheme’s commission.”
572 U.S. at 77 (emphasis added). The majority’s reasoning
fails, because it ignores the load-bearing significance of the
above-italicized language from Rosemond.
As I have explained, see supra at 74–75, Rosemond
unambiguously endorses “Judge Learned Hand’s”
“canonical formulation of th[e] needed state of mind” for
criminal aiding and abetting liability, under which it must be
shown that the defendant had the intent to “bring about” the
crime and “by his action to make it succeed.” Id. at 76
(citation omitted). However, in surveying the relevant
caselaw, the Court observed that in cases involving a
defendant who “actively participates in a criminal
adventure,” the defendant’s “full knowledge of the
circumstances constituting the charged offense” will suffice
to “satisf[y]” the “intent requirement.” Id. at 77 (emphasis
added). That makes sense, because if the defendant is
personally and actively involved in the actual carrying out of
the crime with full and “advance” knowledge of what is
contemplated, that defendant unquestionably intends for that
crime to be accomplished. Id. at 78. Rosemond thus
observed that, in this subset of aiding and abetting cases
involving active participation in the actual criminal conduct,
purpose would be even harder to square with § 2(b), because we have
held that § 2(b) requires proof that the defendant “ha[d] the specific
intent of bringing about the forbidden act.” United States v. Markee, 425
F.2d 1043, 1046 (9th Cir. 1970) (citation and internal quotation marks
omitted).
ALFRED V. GARLAND 77
the knowledge and intent standards amount to the same
thing: “for purposes of aiding and abetting law, a person who
actively participates in a criminal scheme knowing its extent
and character intends that scheme’s commission.” Id. at 77
(emphasis added).
But the Court immediately added a footnote cautioning
that this conclusion rested dispositively on the premise that
the defendant’s affirmative act of assistance extended
beyond the minimal conduct that is ordinarily sufficient for
aiding and abetting purposes and instead involved active
participation in the crime:
We did not deal in these cases, nor do we
here, with defendants who incidentally
facilitate a criminal venture rather than
actively participate in it. A hypothetical case
is the owner of a gun store who sells a firearm
to a criminal, knowing but not caring how the
gun will be used. We express no view about
what sort of facts, if any, would suffice to
show that such a third party has the intent
necessary to be convicted of aiding and
abetting.
Id. at 77 n.8. Rosemond thus equates knowledge and intent
for purposes of aiding and abetting law only in cases
involving active participation in the crime. The majority is
therefore wrong in contending that Rosemond equates them
across the board. 13
13
The Eleventh Circuit committed the same error in similarly—and
wrongly—concluding that Rosemond equates knowledge and intent
78 ALFRED V. GARLAND
In addition to finding no support in Rosemond, the
majority’s wholesale collapsing of knowledge and intent for
aiding and abetting purposes is plainly incorrect. The
majority’s premise that knowledge and intent are equivalent
for aiding and abetting purposes would have come as a
surprise to the drafters of the Model Penal Code, who
debated over the critical differences between those standards
in aiding and abetting law. As explained earlier, those
drafters explicitly recognized that, if knowledge were to be
adopted as the standard rather than intent, “the conduct
requirements” would have to be “more rigorously drafted”
in order to avoid giving a novel and unwarranted sweep to
aiding and abetting principles. See MODEL PENAL CODE
§ 2.06, cmt. 6(c) (emphasis added). That recognition
coheres with Rosemond’s observation that, in cases of active
participation in the crime (which is a situation in which the
“conduct requirement[]” has been more “rigorously”
articulated), there is no practical difference between
knowledge and intent. But the same cannot be said for cases
relying on the full breadth of the conduct requirement under
federal law, under which “a person’s involvement in the
crime could be not merely partial but minimal too.”
Rosemond, 572 U.S. at 73.
In Falcone, Judge Learned Hand similarly recognized
the inappropriateness of combining a less demanding mental
state of knowledge with a broad understanding of what
conduct counts as aiding and abetting. Surveying the circuit
split that had developed over the knowledge-intent issue in
cases involving criminal prosecutions against persons who
supplied materials to illegal distilleries, Judge Hand
across the board for purposes of aiding and abetting liability. Bourtzakis
v. United States Att’y Gen., 940 F.3d 616, 622–25 (11th Cir. 2019).
ALFRED V. GARLAND 79
explained as follows why the Second Circuit had come down
on the side of requiring intent:
[I]n prosecutions for conspiracy or abetting,
[the defendant’s] attitude towards the
forbidden undertaking must be more positive.
It is not enough that he does not forego a
normally lawful activity, of the fruits of which
he knows that others will make an unlawful
use; he must in some sense promote their
venture himself, make it his own, have a stake
in its outcome. The distinction is especially
important today when so many prosecutors
seek to sweep within the drag-net of
conspiracy all those who have been
associated in any degree whatever with the
main offenders. That there are opportunities
of great oppression in such a doctrine is very
plain, and it is only by circumscribing the
scope of such all comprehensive indictments
that they can be avoided. We may agree that
morally the defendants at bar should have
refused to sell to illicit distillers; but, both
morally and legally, to do so was toto coelo
different from joining with them in running
the stills.
109 F.2d at 581 (emphasis added).
The majority asserts that its across-the-board equating of
aiding and abetting liability ultimately makes no practical
difference here, because Washington law supposedly pairs
its lower knowledge requirement for aiding and abetting
with an active-participation conduct requirement. See Opin.
80 ALFRED V. GARLAND
at 45–46. That proposition seems doubtful as a matter of
Washington law, 14 but more importantly, it does nothing to
assuage the concerns raised by the majority’s broader
equating of knowledge and intent in the context of aiding and
abetting. As noted earlier, the majority’s discussion of
generic aiding and abetting entirely ignores the conduct
requirement of aiding and abetting, but it nonetheless flatly
says—based in part on Rosemond—that knowledge and
intent are “largely synonymous.” See Opin. at 31. And in
footnote 10 of its opinion, the majority makes clear that the
“blurry” line between “incidental facilitation and active
participation” makes no difference to its conclusion. See
Opin. at 46 n.10. For the reasons I have explained,
Rosemond does not support the majority’s across-the-board
equating of intent and knowledge in the context of aiding and
abetting.
14
The majority’s construction of Washington law is hard to square with
the fact that the Washington aiding and abetting statute adopts a
knowledge requirement across the board, but without any corresponding
language limiting the assistive conduct to cases of active participation.
Indeed, Washington otherwise copied the relevant Model Penal Code
language about assistive conduct and simply swapped knowledge rather
than intent as the across-the-board mental state standard. (Washington,
however, did not adopt the Model Penal Code’s option for relying on
omitting to perform a duty to prevent an offense. Compare MODEL
PENAL CODE § 2.06(3)(a)(iii) with WASH. REV. CODE
§ 9A.08.020(3)(a).) The resulting facial disparity between Washington
law and Rosemond’s description of aiding and abetting liability is clear.
See Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020)
(“[T]here is not a categorical match if a state statute expressly defines a
crime more broadly than the generic offense.”).
ALFRED V. GARLAND 81
b
Second, the majority wrongly limits a critical aspect of
Rosemond’s description of aiding and abetting liability
under § 2.
Although Washington law requires that the defendant act
“with knowledge that he or she was promoting or facilitating
the crime for which that individual was eventually charged,”
State v. Cronin, 14 P.3d 752, 758 (Wash. 2000) (emphasis in
original), it does not require that the defendant’s knowledge
extend to the “entire crime charged,” Rosemond, 572 U.S. at
76 (emphasis added). Thus, under Washington law, a
defendant who knowingly abets a robbery may be convicted
of armed robbery, even if he or she was unaware that the
robber would be armed. See State v. Davis, 682 P.2d 883,
884–85 (Wash. 1984). By contrast, in Rosemond, the Court
held that, under § 2, the defendant could not be convicted of
aiding and abetting the use of a gun during a drug trafficking
crime in violation of 18 U.S.C. § 924(c) unless it was shown
that he “intended the commission” of “an armed drug sale.”
572 U.S. at 78 (emphasis added).
The conflict between Davis and Rosemond on this point
is so patent that the majority was only able to eliminate it by
dramatically limiting the scope of Rosemond’s holding.
According to the majority, Rosemond’s requirement of
advance knowledge of the entire crime (such as the fact that
it was to be an armed offense) applies only to a narrow class
of “combination” crimes that are closely analogous to
§ 924(c). See Opin. at 40–42. Section 924(c) qualifies as
such a “combination” crime, in the majority’s view, because
it “is a ‘freestanding offense’ that requires proof of two
distinct acts,” whereas, “[i]n contrast, first-degree armed
robbery is an enhanced version of a base offense—simple
82 ALFRED V. GARLAND
robbery.” See Opin. at 41. Because Rosemond’s “entire
crime” rule does not apply to the mine run of cases, the
majority reasons, there is no disparity between Washington
and federal aiding and abetting law on this point. All of this
is wrong.
As an initial matter, the majority ignores the fact that,
even before Rosemond, we have long recognized and applied
the same rule that, “[t]o be convicted as an aider and abettor,
the defendant must have knowingly and intentionally aided
and abetted the principals in each essential element of the
crime.” United States v. Dinkane, 17 F.3d 1192, 1196 (9th
Cir. 1994) (emphasis added); see also United States v. Short,
493 F.2d 1170, 1172 (9th Cir. 1974) (explaining that this rule
follows from general common law principles). In Dinkane,
we applied this same entire-crime-charged rule (later
endorsed in Rosemond) to hold that, “[i]n order to convict a
defendant for armed bank robbery under an aiding and
abetting theory,” the government must “show beyond a
reasonable doubt,” inter alia, “that the defendant knew that
the principal had and intended to use a dangerous weapon
during the robbery.” 17 F.3d at 1195 (emphasis added).
That, of course, is the exact opposite of Washington aiding
and abetting law under Davis. The majority’s effort to limit
Rosemond’s “entire crime charged” rule to “combination
crimes” is thus directly contrary to Dinkane. 15
15
The majority’s only response is to assert that that “Dinkane does not
define generic law for purposes of the categorical analysis.” See Opin.
at 47 n.11. But as I have just explained, Dinkane’s rule was derived from
general common law principles, just as Rosemond’s was. And Dinkane
gives the lie to the majority’s assertion that Rosemond’s application of
those general principles was somehow “novel.” See Opin. at 42.
ALFRED V. GARLAND 83
Moreover, the majority’s posited distinction between a
“combination crime” and an “enhanced version of a base
offense” is illusory and ultimately incoherent. Section
924(c) makes it a criminal offense, inter alia, to use or carry
a firearm “during and in relation to any crime of violence or
drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). As a
result, all of the elements of the predicate crime of violence
or drug trafficking crime must be proved, together with the
additional element that a firearm was used “during and in
relation to that predicate offense.” Id.; see also United States
v. Mendoza, 25 F.4th 730, 741–42 (9th Cir. 2022). In that
respect, a § 924(c) offense that is based on using a gun
during a bank robbery is analytically indistinguishable from
an armed bank robbery charge: both offenses require proof
of all of the elements of the predicate/base offense of bank
robbery plus an additional respective element relating to the
use of a firearm. See 18 U.S.C. §§ 924(c)(1)(A), 2113(a),
(d). In Blockburger terms, a bank robbery offense is every
bit as much of a lesser-included offense of a bank-robbery-
based § 924(c) charge as it is of an armed bank robbery
charge. See Blockburger v. United States, 284 U.S. 299, 304
(1932) (holding that the test for whether two offenses are
distinct for double jeopardy purposes is “whether each
provision requires proof of a fact which the other does not”).
The only difference is that Congress has explicitly allowed a
§ 924(c) count to be separately charged and punished in
addition to the predicate offense. See 18 U.S.C.
§ 924(c)(1)(D)(ii); see also United States v. Davis, 306 F.3d
398, 417–18 (6th Cir. 2002).
Given that, in terms of the constituent elements of the
offenses, a “combination crime” and an “enhanced version
of a base offense” have exactly the same relationship to the
underlying predicate/base offense, there is no principled
84 ALFRED V. GARLAND
basis for saying that Rosemond’s “entire crime” rule applies
to one but not the other. 572 U.S. at 76. Moreover, nothing
in Rosemond suggests that the Court was articulating a
special mental state rule that applies, as the majority would
have it, only in the context of a peculiar subset of
“combination crimes.” On the contrary, in holding that the
intent required for aiding and abetting “must go to the
specific and entire crime charged,” the Rosemond Court
described that holding as a “general rule” that was based on
longstanding common law principles. See id. at 76 & n.7.
Indeed, Rosemond cited with approval two cases that (like
Dinkane) held that, as the Court put it, “the unarmed driver
of a getaway car had the requisite intent to aid and abet
armed bank robbery if he ‘knew’ that his confederates would
use weapons in carrying out the crime.” Id. at 77 (emphasis
added) (citing United States v. Akiti, 701 F.3d 883, 887 (8th
Cir. 2012); United States v. Easter, 66 F.3d 1018, 1024 (9th
Cir. 1995)). 16
16
Moreover, although Rosemond does refer to a § 924(c) charge as a
“combination crime,” it made that observation only in discussing the
defendant’s arguments concerning the affirmative-act component of
aiding and abetting liability and not the mental state component. See 572
U.S. at 75. Rosemond had argued that the use of a firearm “is § 924(c)’s
most essential feature” and that, as a result, he could not be convicted of
aiding and abetting a § 924(c) offense unless “the requisite act” of
assistance . . . was directed at the use of the firearm.” Id. (emphasis added).
The Court rejected this effort to make the use of a gun the only relevant
offense conduct for the underlying § 924(c) charge. Because a § 924(c)
violation is a “combination crime” about using guns during drug
trafficking, the Court explained, it would be wrong to say that Ҥ 924(c) is
somehow more about using guns than selling narcotics.” Id. And because
the affirmative-act requirement of aiding and abetting is satisfied by even
minimal assistance to “one component” of the offense, Rosemond could
ALFRED V. GARLAND 85
* * *
At best, the majority’s en banc misreading of Rosemond
casts a serious cloud over the previously settled scope of
federal aiding and abetting under § 2. At worst, it arguably
overturns decades of settled law on that subject. I
respectfully dissent from that aspect of the majority’s
opinion.
IV
For the foregoing reasons, I concur in the majority’s
judgment that the petition should be denied, but I dissent
from essentially all of its reasoning.
be found to have committed the requisite act by conduct “facilitating either
the drug transaction or the firearm use (or of course both).” Id. at 74–75.
Nothing about this reasoning even remotely supports the majority’s
holding that the entire-crime mental state element of aiding and abetting
does not apply to the enhanced version of a base offense.
86 ALFRED V. GARLAND
CALLAHAN, Circuit Judge, with whom Bade, Circuit
Judge, joins, concurring in the judgment:
I vote to deny the petition. Because we need not consider
aiding and abetting liability, I concur in Sections I and II of
Judge Collins’ concurrence in part and dissent in part.
However, because by the vote of a majority of the en banc
panel aiding and abetting liability remains before us, I also
concur in subsections B and C of Section IV and Section V
of Judge Bybee’s opinion and agree that Washington’s
aiding and abetting law is not overbroad.
McKEOWN, Circuit Judge, with whom MURGUIA, Chief
Judge, and S.R. THOMAS and VANDYKE, Circuit Judges,
join, dissenting:
In yet another case, we are called on to conduct what
sounds like a simple analysis—“whether ‘[Washington’s]
statute defining the crime of conviction’ categorically fits
within the ‘generic’ federal definition of a corresponding
aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184,
190 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 186 (2007)). But that proposition is easier stated than
applied. Consequently, we have said that “perhaps no other
area of the law has demanded more of our resources.”
United States v. Aguila-Montes de Oca, 655 F.3d 915, 917
(9th Cir. 2011) (en banc) (opinion of Bybee, J.), abrogated
on other grounds by Descamps v. United States, 570 U.S.
254 (2013). Because “[t]he categorical approach requires us
to perform absurd legal gymnastics,” Lopez-Aguilar v. Barr,
948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring),
it is no surprise that scholars have asked whether this is a
ALFRED V. GARLAND 87
“categorical approach or categorical chaos.” 1 Other circuits
have observed that the categorical approach “push[es] us
into a catechism of inquiry that renders these approaches
ludicrous.” United States v. Williams, 898 F.3d 323, 337 (3d
Cir. 2018) (Roth, J., concurring). Because courts are
required to parse numerous state statutes in applying
immigration and criminal law, often leading to inconsistent
conclusions, it is no wonder “the categorical approach has
developed a reputation for crushing common sense.” United
States v. Escalante, 933 F.3d 395, 406 (5th Cir. 2019).
Notwithstanding such obvious frailties, the categorical
approach forces us into the straitjacket of slicing and dicing
the statutes, often producing “arbitrary and inequitable
results.” Mathis v. United States, 579 U.S. 500, 521 (2016)
(Kennedy, J., concurring). But since we must do so, it is
only fair to adhere to state law as state law is written, not as
we wish it to be, and to land on a generic definition that
comports with the Model Penal Code, the majority of state
statutes, and leading treatises. Because the majority takes a
path that diverges from these principles, I respectfully
dissent.
I agree with the majority that, under the categorical
approach, we must compare the state statute to the federal
generic definition of the offense. I also agree that because
Washington’s statutory scheme incorporates accomplice
1
Timothy M. Mulvaney, Note, Categorical Approach or Categorical
Chaos? A Critical Analysis of the Inconsistencies in Determining
Whether Felony DWI is a Crime of Violence for Purposes of Deportation
Under 18 U.S.C. § 16, 48 Vill. L. Rev. 697 (2003); see also Sheldon A.
Evans, Punishing Criminals for Their Conduct: A Return to Reason for
the Armed Career Criminal Act, 70 Okla. L. Rev. 623, 645 (2018)
(describing the categorical approach as “contrived” and “not based in
reality”).
88 ALFRED V. GARLAND
liability into all crimes, we must consider accomplice
liability in our categorical analysis of Washington second-
degree robbery. But I part ways with the majority in two
significant respects. First, we differ on the generic definition
of accomplice liability. A close read of the relevant sources
reveals that generic accomplice liability requires a mental
state of purpose, which is different than knowledge. Second,
we disagree on whether Washington’s second-degree
robbery statute is a categorical match with the generic theft
offense. Washington accomplice liability requires a mental
state of knowledge, which is lower than purpose. Because
the Washington law is therefore a categorical mismatch with
generic theft, I would grant Alfred’s petition for review.
The majority recites the relevant considerations for
discerning the generic definition of accomplice liability
before concluding that it is “difficult to discern a clear
generic standard.” Yet, the majority continues with apparent
confidence, because the purpose mental state is
interchangeable with the knowledge mental state, “advance
knowledge of the crime is sufficient to support a conviction
for generic accomplice liability.” The legal landscape,
however, is far less chaotic than the majority suggests, and
the majority’s cited authorities do not support this
conclusion. Indeed, generic accomplice liability requires a
mental state of purpose, not knowledge.
To begin, the Model Penal Code expressly distinguishes
purpose and knowledge. The Model Penal Code defines four
culpable mental states: (1) purposely, (2) knowingly,
(3) recklessly, and (4) negligently. Model Penal Code
§ 2.02(2) (Am. L. Inst. 2021). Specifically:
(a) Purposely. A person acts purposely with respect
to a material element of an offense when:
ALFRED V. GARLAND 89
(i) if the element involves the nature of his
conduct or a result thereof, it is his
conscious object to engage in conduct of
that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the
existence of such circumstances or he
believes or hopes that they exist.
(b) Knowingly. A person acts knowingly with
respect to a material element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances,
he is aware that his conduct is of that
nature or that such circumstances exist;
and
(ii) if the element involves a result of his
conduct, he is aware that it is practically
certain that his conduct will cause such a
result.
Id. “[P]urposely” is synonymous with “intentionally,”
Model Penal Code § 1.13(12) (Am. L. Inst. 2021), and
“corresponds loosely with the common-law concept of
specific intent,” United States v. Bailey, 444 U.S. 394, 405
(1980). In contrast, “knowledge corresponds loosely with
the concept of general intent.” Id. (internal quotation marks
omitted).
Having differentiated between purpose and knowledge,
the Model Penal Code states that a person is liable as an
accomplice if:
(a) with the purpose of promoting or facilitating
the commission of the offense, he
90 ALFRED V. GARLAND
(i) solicits such other person to commit it, or
(ii) aids or agrees or attempts to aid such
other person in planning or committing it,
or
(iii) having a legal duty to prevent the
commission of the offense, fails to make
proper effort so to do; or
(b) his conduct is expressly declared by law to
establish his complicity.
Model Penal Code § 2.06(3) (Am. L. Inst. 2021).
In general, “[t]he generic definition of an offense
roughly corresponds to the definitions of the offense in a
majority of the States’ criminal codes.” United States v.
Garcia-Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015)
(internal quotation marks and citation omitted). As the
majority acknowledges, twenty-six state criminal codes
comport with the Model Penal Code and require that an
accomplice act with a mental state of purpose or intent. See
2 Wayne R. LaFave, Substantive Criminal Law § 13.2(b), at
466–67 nn.70, 72 (3d ed. 2018); see also, e.g., Ga. Code
Ann. § 16-2-20(b); Ariz. Rev. Stat. § 13-301; Mont. Code
Ann. § 45-2-302(3). The federal accomplice liability statute
similarly requires a mental state of purpose. See 18 U.S.C.
§ 2 (providing that “[w]hoever commits an offense against
the United States or aids, abets, counsels, commands,
induces or procures its commission” and “[w]hoever
willfully causes an act to be done which if directly performed
by him or another would be an offense against the United
States, is punishable as a principal”); United States v.
Hernandez-Orellana, 539 F.3d 994, 1006 (9th Cir. 2008)
(explaining that federal aiding and abetting requires “that the
accused had the specific intent to facilitate the commission
ALFRED V. GARLAND 91
of a crime by another”). The majority admits as much by
noting that “18 U.S.C. § 2(a) adequately reflects federal
generic accomplice liability law.”
Here, the generic accomplice liability standard is clear:
intent is required. This conclusion is amplified by criminal-
law treatises, which instruct that accomplice liability
generally requires a higher mental state than knowledge.
LaFave explains that, in general, “accomplice liability exists
when the accomplice intentionally encourages or assists, in
the sense that his purpose is to encourage or assist another in
the commission of a crime as to which the accomplice has
the requisite mental state.” LaFave, supra, § 13.2(b), at 467.
Further, although some states like Washington allow for
accomplice liability based on “encouragement or assistance
with knowledge that it will promote or facilitate a crime,”
accomplice “liability has seldom been imposed on this
basis.” Id. at 468–69; see also Jens David Ohlin, Wharton’s
Criminal Law § 10:9 (16th ed. 2022) (explaining that federal
courts, the Model Penal Code, and some states follow the
“purpose standard” rather than “the more relaxed knowledge
standard”).
Instead of relying on the consensus of twenty-six states,
the majority leaps to conclude that purpose and knowledge
are equivalent. In doing so, the majority focuses on five
states—Wisconsin, Missouri, Idaho, Michigan, and
Illinois—that ostensibly blur the line between purpose and
knowledge. Even if five states’ policies were a sufficient
rebuttal to majority consensus, these state statutes do not
support the majority’s conclusion with the force the majority
asserts. For example, Wisconsin, Missouri, and Idaho do not
treat purpose and knowledge as interchangeable. Wisconsin
law provides that intent is a required element of accomplice
liability and can be proven with a combination of knowledge
92 ALFRED V. GARLAND
and either an overt act of assistance or an indication of
willingness to assist. See State v. Hibbard,
No. 2020AP1157-CR, 2022 WL 4363364, at *3 (Wis. Ct.
App. Sept. 21, 2022); Wis. IJ-Criminal, No. 400. Missouri
and Idaho, on the other hand, stipulate that either intent or
knowledge can satisfy the mental state requirement. See,
e.g., State v. Barker, 442 S.W.3d 165, 169 (Mo. Ct. App.
2014); State v. Gonzalez, 12 P.3d 382, 384 (Idaho Ct. App.
2000). And Michigan and Illinois have identified
knowledge and intent as two separate factors that may
support an inference of accomplice liability. See, e.g.,
People v. Robinson, 715 N.W.2d 44, 48 (Mich. 2006);
People v. Batchelor, 665 N.E.2d 777, 780–81 (Ill. 1996).
Allowing for multiple options of proving an element does
not make those options equivalent.
The majority also cites Rosemond v. United States, 572
U.S. 65 (2014), as evidence of the blurred line between
purpose and knowledge. The Supreme Court’s analysis in
Rosemond, however, reveals that the purpose mental state in
the federal aiding and abetting statute, 18 U.S.C. § 2, is
higher than Washington’s knowledge requirement. The
Court in Rosemond, considering the conduct necessary to
demonstrate that a person intended to facilitate the
commission of a crime, held that “an aiding and abetting
conviction requires not just an act facilitating one or another
element, but also a state of mind extending to the entire
crime.” 572 U.S. at 75–76 (emphasis added). The Court
clarified that its holding was “grounded in the distinctive
intent standard for aiding and abetting.” Id. at 81 n.10.
Accordingly, as the majority acknowledges, a federal
conviction for aiding and abetting requires the defendant to
have had “full knowledge of the circumstances constituting
the charged offense.” See id. at 77.
ALFRED V. GARLAND 93
An accomplice in Washington need only participate in a
crime with general knowledge of the crime being committed,
not specific knowledge of “every element” of the crime.
State v. Roberts, 14 P.3d 713, 736 (Wash. 2000). Under
Rosemond, for an accomplice to have intended “a [criminal]
scheme’s commission, he” must have participated in the
scheme while understanding its “extent and character.” 572
U.S. at 77. Rosemond did not confirm the interchangeability
of intent and knowledge. Instead, Rosemond clarified that
advance knowledge is necessary, but not sufficient, to
establish the purpose mental state.
The majority doubly errs by forcing its view of what
Washington law should be and by collapsing the purpose and
knowing mental states, an error highlighted by Washington
law’s express differentiation between those mental states.
Washington’s criminal code provides that “[a] person acts
with intent or intentionally when he or she acts with the
objective or purpose to accomplish a result which constitutes
a crime.” Wash. Rev. Code. § 9A.08.010(1)(a). A person
acts with knowledge, however, when:
(i) He or she is aware of a fact, facts, or
circumstances or result described by a statute
defining an offense; or
(ii) He or she has information which would
lead a reasonable person in the same situation
to believe that facts exist which facts are
described by a statute defining an offense.
Id. § 9A.08.010(1)(b). For accomplice liability, Washington
has required general knowledge, not purpose or intent. In
State v. Roberts, the defendants were charged with
aggravated murder in the first degree, or, alternatively,
94 ALFRED V. GARLAND
felony murder in the first degree. 14 P.3d at 721. The trial
court provided a jury instruction at the guilt phase regarding
accomplice liability. Id. at 730. The Washington Supreme
Court explained that first-degree murder requires a mens rea
of intent, while accomplice liability “requires only a mens
rea of knowledge.” Id. at 731. The court further stated that
a conviction based on the accomplice liability statute
requires only that an accomplice has general knowledge of
the specific crime committed by the principal, not “specific
knowledge of every element of the crime committed.” Id. at
736.
Following Roberts, Washington has repeatedly
articulated that knowledge of the principal’s crime is
sufficient to support a conviction for accomplice liability.
See, e.g., State v. Berube, 79 P.3d 1144, 1151 (Wash. 2003)
(citing cases and noting that, “[f]or Berube’s conviction as
an accomplice to stand, the evidence must support a finding
that she . . . kn[ew] that her acts would either promote or
facilitate the crime”); State v. Carter, 109 P.3d 823, 829
(Wash. 2005) (explaining that an erroneous jury instruction
on accomplice liability was harmless when the jury’s
conviction was clearly based on the defendant’s knowledge
of the principal’s charged crimes). The Washington
Supreme Court has also held that a defendant has “adequate
knowledge” for accomplice liability when he “acts with
knowledge that [his] conduct will promote the specific crime
charged.” State v. Farnsworth, 374 P.3d 1152, 1159 (Wash.
2016) (citing State v. Cronin, 14 P.3d 752, 759 (Wash.
2000)).
This principle was reinforced when the Washington
Supreme Court recently upheld a conviction for second-
degree assault on an accomplice liability theory where the
defendant argued that she lacked knowledge that her
ALFRED V. GARLAND 95
codefendants would assault the victim “with a deadly
weapon.” State v. Dreewes, 432 P.3d 795, 799 (Wash.
2019). The court noted that the defendant knew generally of
the plan to rob a home and kidnap someone there, even
though she did not know that her co-defendant would assault
the victim—who was not the person the co-defendant sought
to kidnap—with a rifle. Id. at 802. The defendant’s “general
knowledge” of the substantive crime sufficed for her
conviction, and specific knowledge of all the elements of the
crime was not necessary. Id.
Further, in practice, an accomplice in Washington need
not “have the intent” to commit a specific crime, “just
knowledge that his actions were facilitating the crime.”
State v. A.L.Y., No. 56645–8–I, 2006 WL 2723983, at *3
(Wash. Ct. App. Sept. 25, 2006) (per curiam). In State v.
A.L.Y., the defendant argued that he could not be guilty of
second-degree robbery, even as an accomplice, because he
lacked intent to steal, which is “an essential non-statutory
element of robbery in Washington.” Id. The Washington
Court of Appeals clarified that an accomplice need not
“share the same mental state as the principal,” and that
A.L.Y.’s general “knowledge that his actions were
facilitating” the robbery was sufficient to support his
conviction. Id. (quoting Berube, 79 P.3d at 1151).
Despite the clear instruction that Washington requires
only knowledge for accomplice liability, the majority
concludes that Washington’s second-degree robbery statute
is a categorical match with a generic theft definition that
requires an accomplice to act with the purpose to aid and
abet in the commission of a crime. The majority, unwilling
to accept what Washington law is, imputes its own view of
what Washington law should be.
96 ALFRED V. GARLAND
Beyond wrongly concluding that Washington’s statute is
a categorical match with generic theft, the majority errs by
collapsing the purpose and knowledge mental states. By the
Model Penal Code’s own definitions, purpose and knowing
are different standards. Compare Model Penal Code
§ 2.02(2)(a), with § 2.02(2)(b); see Bailey, 444 U.S. at 405.
The majority of states follow this scheme, but a state’s
decision to diverge from these definitions should not be a
basis to elide those concepts when determining the generic
offense, nor an excuse to rewrite clear state law. See
Sarausad v. Porter, 503 F.3d 822, 831 (9th Cir. 2007)
(Callahan, J., dissenting from denial of rehearing en banc)
(“As a federal court, we should not expand our duties to
rewrite state laws.”).
My disagreement with the majority illustrates the
confusion and frustration engendered by the categorical
approach. As explained above, under the overwhelming
weight of authority, there is an unambiguous definition of
accomplice liability that requires a mental state of purpose
or intent, not simply knowledge. But the majority sees it
otherwise, declaring that the generic definition of
accomplice liability is murky and then transforming that
murkiness into an absolute definition that disfavors Alfred.
I respectfully dissent and would grant Alfred’s petition.
ALFRED V. GARLAND 97
VANDYKE, Circuit Judge, dissenting:
While I would like to join Judge Bybee’s
characteristically well-written decision, I agree with Judge
Collins and my dissenting colleagues that the analysis
therein incorrectly elides the distinction between the mental
states of knowledge (or general intent) and purpose (or
specific intent) to find a categorical match in this case. The
distance between those mental states is too great a gulf to
span. And while the approach taken by Judge Collins in his
decision has a lot to commend it as an original matter, I also
can’t join it entirely because I don’t believe his approach is
ultimately reconcilable with what the Supreme Court
actually did in Duenas-Alvarez. So I must dissent from our
court’s result in this case. 1
I write separately from the other dissenters only to
address more specifically why I am prevented from fully
joining Judge Collins’s decision. Judge Collins
characterizes as superfluous the Supreme Court’s analysis of
a disputed issue it actually decided in Duenas-Alvarez:
whether California’s doctrine of aiding and abetting was
“special” and thus unlike the generic counterpart. 549 U.S.
at 190–91. This was the main issue litigated by Duenas-
1
I’m not very happy with where I ended up in this case, and I might as
well add my voice to the chorus of judges who have emphasized the
whole categorical match approach is “dumb, dumb, dumb.” Orellana v.
Barr, 967 F.3d 927, 940 (9th Cir. 2020) (Owens, J., concurring); see also
Mathis v. United States, 579 U.S. 500, 536–44 (2016) (Alito, J.,
dissenting); United States v. Valdivia-Flores, 876 F.3d 1201, 1210–11
(2017) (O’Scannlain, J., specially concurring). In addition to all the
freakshow oddities this misguided approach has wrought, you can now
add this case, where Alfred loses, but our court isn’t really sure as to
why.
98 ALFRED V. GARLAND
Alvarez before the Supreme Court, but by characterizing it
as a mere “alternative argument,” Judge Collins minimizes
what was really the heart of that case.
According to Judge Collins, “[n]othing in the Court’s
holding or analysis on this point suggests that it was even
undertaking—much less mandating—a categorical-match
analysis between federal generic aiding and abetting
principles and California aiding and abetting principles.”
Respectfully, I don’t think that is a permissible reading of
Duenas-Alvarez. If Judge Collins was correct in suggesting
the Court thought categorical analysis of aiding and abetting
was unnecessary, the Court could have resolved section
III(A) of Duenas-Alvarez in one easy sentence: “Because
aiding and abetting is not part of the categorical analysis
inquiry, Duenas-Alvarez’s argument that California’s aiding
and abetting law is different from its generic counterpart is
irrelevant.” But that’s not what the Court did. The Court
said that “[t]o succeed, Duenas-Alvarez must show
something special about California’s version of the [aiding
and abetting] doctrine—for example, that California in
applying it criminalizes conduct that most other States would
not consider ‘theft.’” Duenas-Alvarez, 549 U.S. at 191 (first
emphasis added). “Duenas-Alvarez attempt[ed] to make just
such a showing,” but the Supreme Court rejected it, not
because it was irrelevant, but because Duenas-Alvarez failed
in his attempt. Id. at 191–93. And the Court spent multiple
pages explaining why. Id. at 190–93. If Judge Collins was
correct that aiding and abetting is irrelevant to the
categorical match analysis, then this whole discussion by the
Court was an inexplicable extended frolic and detour.
Judge Collins nonetheless argues that the Court did not
necessarily require a categorical match analysis of aiding
and abetting because it merely compared “the particulars of
ALFRED V. GARLAND 99
California’s approach to aiding and abetting” to generic
aiding and abetting. What Judge Collins artfully calls “the
Supreme Court’s analysis of Duenas-Alverez’s alternative
argument challenging the particulars of California’s
approach to aiding and abetting” was, in fact, a categorical
match analysis of aiding and abetting. But while the Court
in Duenas-Alvarez clearly did a categorical match analysis
of aiding and abetting, Judge Collins puts decisive weight on
the fact that the Court never explicitly stated that the analysis
it conducted was necessary. As he sees it, by doing a
categorical analysis but not saying it needed to do what it
did, “the Court did not reach th[e] broader issue” of whether
what it did was necessary.
Respectfully, I find that an odd way to read Duenas-
Alvarez—the Supreme Court devoted the central part of its
opinion spanning multiple pages to doing a categorical
match analysis of aiding and abetting. And that’s
presumably why Judge Collins’s interpretation of Duenas-
Alvarez is so original. See, e.g., Bourtzakis v. U.S. Att’y
Gen., 940 F.3d 616, 620–22 (11th Cir. 2019). Under that
approach to reading Supreme Court precedents, if the Court
wants lower courts to follow its precedents, I guess it must
tell, not show.
That is not an interpretive approach I think any lower
court could apply consistently. Consider, for example, the
applicability of the First Amendment in some particular
context. Assume that the Supreme Court in cases in that
context analyzed whether there had been a First Amendment
violation by applying some well-established First
Amendment test (say, strict scrutiny), and concluded in
every case that, on the unique facts of each case, there was
no violation. But the Court simply did the analysis; it never
actually said it was required. Would we then feel free to
100 ALFRED V. GARLAND
conclude the First Amendment was categorically
inapplicable in that context, because (quoting Judge Collins)
the Court had never expressly “sua sponte raise[d] the
threshold question of whether any such [First Amendment
analysis] was required”? No. I think we would safely
assume that if the First Amendment was categorically
inapplicable in that context, the Court would not have gone
to all the trouble to perform a strict scrutiny analysis. Or at
least we should assume so until the Court tells us differently.
To conclude otherwise is to impose a “magic words”
requirement on the Supreme Court that has no basis in
common sense or practice. 2
Judge Collins’s characterization of Duenas-Alvarez’s
aiding-and-abetting-mismatch argument as a mere
“alternative argument” that didn’t merit much attention from
the Supreme Court is inconsistent with that case’s procedural
history. By the time the Supreme Court reviewed Duenas-
Alvarez, that argument was the central controversy before to
the Court. The Court originally granted certiorari in the case
to consider and overrule our court’s prior decision in
Penuliar v. Ashcroft, 395 F.3d 1037, 1044–46 (9th Cir.
2
To be fair to Judge Collins, his argument is not logically wrong. It is
possible for a court to assume arguendo that a particular legal standard
applies, and then conclude, after applying that assumed standard, that the
party arguing for that standard would lose even if that standard did apply.
Courts do that sometimes. But they usually signal in some way when
that is what they are doing. I see no indicia in Duenas-Alvarez that the
Supreme Court was assuming arguendo the applicability of the
categorical match analysis. To the contrary, the Court seems to have
deemed the applicability of the categorical analysis to aiding and
abetting to be so obvious that it simply dove into the analysis without
ever expressly saying it was required. Courts also do that frequently. To
conclude otherwise, as Judge Collins does, is a novel reading of Duenas-
Alvarez.
ALFRED V. GARLAND 101
2005), which had misapplied the categorical approach to
hold that because (i) California’s law of theft criminalized
aiding and abetting, and (ii) California’s aiding and abetting,
unlike the generic theft offense, didn’t involve taking or
controlling property, that therefore California’s law swept
more broadly than, and thus did not match, the federal theft
offense. See Duenas-Alvarez, 549 U.S. at 188–89. The
Court granted review in Duenas-Alvarez to correct the part
of our court’s categorical match analysis that determined
aiding and abetting a theft was not a crime that fell within
the federal generic definition of theft. Id. But after the
Supreme Court granted certiorari, Duenas-Alvarez did not
even contest that point. See id. at 190 (“Duenas-Alvarez
does not defend the Ninth Circuit’s position.”). Given that
procedural posture, the Court’s uncontroversial reversal of
Penuliar required little work: “The question before us is
whether one who aids or abets a theft falls, like a principal,
within the scope of th[e] generic definition. We conclude
that he does.” Id. at 189. Indeed, the Court barely spent
three paragraphs on the question. Id. at 189–90.
Instead, the meat of the case before the Supreme Court
was precisely the issue that Judge Collins downplays as a
mere “alternative argument.” Seeing the writing on the wall
from the Court’s grant of certiorari, Duenas-Alvarez
conceded that the generic law “treats aiders and abettors
during and before [a theft] the same way it treats principals.”
Id. at 190. But he argued that he should still win because,
acknowledging that categorical analysis applied to aiding
and abetting, California’s doctrine was so dissimilar from
the generic counterpart as to be “special.” Id. at 191. The
Court took nine paragraphs and two detailed appendices to
conclude that it was not “special.”
102 ALFRED V. GARLAND
Again, if Judge Collins was correct that the Supreme
Court really thought aiding and abetting liability was simply
irrelevant to the categorical match analysis, why did the
Court go to all the trouble to address Duenas-Alvarez’s
argument on the merits at all? It would have been easy
enough (indeed, much simpler than what it did) to just say:
“It’s irrelevant.” Instead, the Court concluded that, “in our
view, to find that a state statute creates a crime outside the
generic definition of a listed crime in a federal statute
requires more than the application of legal imagination to a
state statute’s language.” Id. at 193. Rather, “[i]t requires a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.” Id. These statements about
how to apply the categorical match analysis are sandwiched
in the middle of the Court’s comparison between
California’s approach to aiding and abetting and the generic
approach.
Judge Collins has made a powerful argument for what
the law maybe should be, and maybe the Supreme Court will
adopt that argument in the future. But it’s too difficult for
me to reconcile that with what the Court actually did in
Duenas-Alvarez. I thus reluctantly dissent.