GINSBURG, J., concurring in judgment "The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in whole or in part from the negligence of the railroad or its employees or agents. In other words, did such negligence play any part, even the slightest, in bringing about an injury to the plaintiff?" 5 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions-Civil ¶89.02, p. 89-44 (3d ed. 2006). Regarding contributory negligence, the relevant instruction reads: "To determine whether the plaintiff was 'contributorily negligent,' you . . . apply the same rule of causation, that is, did the plaintiff's negligence, if any, play any part in bringing about his injuries." Id., ¶89.03, p. 89-53. Both instructions direct jurors in plain terms that they can be expected to understand. Finally, as the Court notes, ante, at 172, on remand, the Missouri Court of Appeals will determine whether a new trial is required in this case, owing to the failure of the trial judge properly to align the charges on negligence and contributory negligence. The trial court instructed the jury to find Norfolk liable if the railroad's negligence "resulted in whole or in part in injury to plaintiff." App. 14. In contrast, the court told the jury to find Sorrell contributorily negligent only if he engaged in negligent conduct that "directly contributed to cause his injury." Id., at 15 (emphasis added). At trial, Norfolk sought a different contributory negligence instruction. Its proposed charge would have informed the jury that Sorrell could be held responsible, at least in part, if his own negligence "contributed in whole or in part to cause his injury." Id., at 11. Norfolk's proposal was superior to the contributory negligence instruction in fact delivered by the trial court, for the GINSBURG, J., concurring in judgment railroad's phrasing did not use the word "directly." As Sorrell points out, however, the instructional error was almost certainly harmless. Norfolk alleged that Sorrell drove his truck negligently, causing it to flip on its side. Under the facts of this case, it is difficult to imagine that a jury could find Sorrell negligent in a manner that contributed to his injury, but only indirectly. Norfolk urged in this Court, belatedly and unsuccessfully, that the charge on negligence was erroneous and should have been revised to conform to the charge in fact delivered on contributory negligence. See ante, at 163. That argument cannot be reconciled with our precedent. See supra, at 177– 178. Even if it could, it would be unavailing in the circumstances here presented. Again, there is little likelihood that a jury could find that Norfolk's negligence contributed to Sorrell's injury, but only indirectly. With the above-described qualifications, I concur in the Court's judgment. Norfolk's proposed instruction was, nevertheless, imperfect. As the Court notes, if the employee's negligence "contributed in whole' to his injury, there would be no recovery against the railroad in the first place." Ante, at 170. Syllabus GONZALES, ATTORNEY GENERAL v. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 05-1629. Argued December 5, 2006-Decided January 17, 2007 Respondent, a permanent resident alien, was convicted of violating Cal. Veh. Code Ann. §10851(a), under which "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner..., or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense." (Emphasis added.) The Federal Government then sought to remove respondent from the United States as an alien convicted of "a theft offense... for which the term of imprisonment [is] at least one year," 8 U. S. C. § 1101(a)(43)(G); § 1227(a)(2)(A). The Government claimed that the California conviction qualified as such a "theft offense" under the framework set forth in Taylor v. United States, 495 U. S. 575. In Taylor, the Court considered whether a prior conviction for violating a state statute criminalizing certain burglary-like behavior fell within the term "burglary" for sentence-enhancement purposes under 18 U. S. C. § 924(e). This Court held that Congress meant that term to refer to "burglary" in "the generic sense in which the term is now used in the criminal codes of most States," 495 U. S., at 598; and that a sentencing court seeking to determine whether a particular prior conviction was for generic burglary should normally look to the state statute defining the crime of conviction, not to the facts of the particular prior case, id., at 599-600; but that where state law defines burglary broadly to include crimes falling outside generic "burglary," the sentencer should "go beyond the mere fact of conviction" and examine, e. g., the charging document and jury instructions to determine whether the earlier "jury was actually required to find all the elements of generic burglary," id., at 602. The Federal Immigration Judge and the Board of Immigration Appeals (BIA) found respondent removable, but the Ninth Circuit summarily remanded in light of its earlier Penuliar decision holding that "aiding and abetting" a theft is not itself a crime under the generic definition of theft. Held: The term "theft offense" in 8 U. S. C. § 1101(a)(43)(G) includes the crime of "aiding and abetting" a theft offense. Pp. 189-194. (a) One who aids or abets a theft, like a principal who actually participates, commits a crime that falls within the scope of the generic theft Syllabus definition accepted by the BIA and the Ninth and other Circuits: the "taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Penuliar v. Gonzales, 435 F. 3d 961, 969. Since, as the record shows, state and federal criminal law now uniformly treats principals and aiders and abettors alike, "the generic sense in which" the term "theft" "is now used in the criminal codes of most States," Taylor, supra, at 598, covers such "aiders and abettors" as well as principals. And the criminal activities of these aiders and abettors of a generic theft thus fall within the scope of the term "theft" in the federal statute. Pp. 189-190. (b) The Court rejects respondent's argument that Cal. Veh. Code Ann. § 10851, through the California courts' application of a "natural and probable consequences" doctrine, creates a subspecies of the crime falling outside the generic "theft" definition. The fact that, under California law, an aider and abettor is criminally responsible not only for the crime he intends, but also for any crime that naturally and probably results from his intended crime, does not in itself show that the state statute covers a nongeneric theft crime. Relatively few jurisdictions have expressly rejected the "natural and probable consequences" doctrine, and many States and the Federal Government apply some form or variation of that doctrine or permit jury inferences of intent in circumstances similar to those in which California has applied the doctrine. To succeed, respondent must show something special about California's version of the doctrine. His attempt to show that, unlike most other States, California makes a defendant criminally liable for conduct he did not intend, not even as a known or almost certain byproduct of his intentional acts, fails because the California cases respondent cites do not show that California's law is applied in such a way that is somehow broader in scope than other States' laws. Moreover, to find that state law creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct falling outside the generic definition. To make that showing, an offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Respondent makes no such showing. Pp. 190–194. (c) Respondent's additional claims-that § 10851 (1) holds liable accessories after the fact, who need not be shown to have committed a theft, and (2) applies to joyriding, which falls outside the generic "theft" definition are not considered here because they do not fall within the terms of the question presented, the lower court did not consider them, and this Court declines to reach them in the first instance. P. 194. 176 Fed. Appx. 820, vacated and remanded. Opinion of the Court BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined, and in which STEVENS, J., joined, as to Parts I, II, and III-B. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 198. Dan Himmelfarb argued the cause for petitioner. With him on the briefs were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, and Donald E. Keener. Christopher J. Meade argued the cause and filed a brief for respondent.* JUSTICE BREYER delivered the opinion of the Court. Immigration law provides for removal from the United States of an alien convicted of "a theft offense (including receipt of stolen property) . . . for which the term of imprisonment [is] at least one year." 8 U. S. C. §1101(a)(43)(G) (emphasis added; footnote omitted); § 1227(a)(2)(A). The question here is whether the term "theft offense" in this federal statute includes the crime of "aiding and abetting" a theft offense. We hold that it does. And we vacate a Ninth Circuit determination to the contrary. I The Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. (2000 ed. and Supp. IV), lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, § 1227(a). In determining whether a conviction (say, a conviction for violating a state criminal law that forbids the taking of property without permission) falls within the scope of *Briefs of amici curiae urging affirmance were filed for the California Public Defenders Association by Jeremy Maltby; and for the National Immigration Project of the National Lawyers Guild by Charles A. Rothfeld, Andrew J. Pincus, and Giovanna Shay. Meir Feder and Samuel Estreicher filed a brief for Professors of Criminal Law as amici curiae. |