Nugent v. Atty Gen USA , 367 F.3d 162 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-7-2004
Nugent v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-4329
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PRECEDENTIAL STEVEN A. MORLEY, ESQ. (Argued)
Morley, Surin & Griffin, P.C.
UNITED STATES COURT OF Constitution Place
APPEALS 325 Chestnut Street, Ste 1305-P
FOR THE THIRD CIRCUIT Philadelphia, PA 19106
ATTORNEY FOR PETITIONER
No. 02-4329
PETER D. KEISLER, ESQ.
ERROL O'NEIL NUGENT, Assistant Attorney General, Civil Division
DAVID V. BERNAL, ESQ.
Petitioner Assistant Director
WILLIAM C. MINICK, ESQ.
v. ANTHONY C. PAYNE, ESQ.
JAMIE M . DOWD, ESQ. (Argued)
JOHN ASHCROFT, ATTORNEY Office of Immigration Litigation
GENERAL OF THE UNITED STATES, Civil Division
United States Justice Department
Respondent P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
ATTORNEYS FOR RESPONDENT
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A30-198-870)
No. 04-1541
Argued
January 12, 2004 ERROL O’NEIL NUGENT,
Before: SLOVITER, RENDELL and
ALDISERT, Circuit Judges Appellant
(Filed May 7, 2004)
v.
PATRICIA MULLIN, ASSOC.
SPECIAL AGENT IN CHARGE OF THE
PHILADELPHIA OFFICE OF UNITED
1
S T A TE S I M M IG R A T IO N A N D
CUSTOMS AND ENFORCEM ENT
(USICE) OF THE DEPARTMENT OF MARY C. FRYE, ESQ.
HOMELAND SECURITY; THEODORE Office of United States Attorney
NORDMARK, ASSISTANT DISTRICT 615 Chestnut Street, Suite 1250
DIRECTOR FOR DEPORTATION AND Philadelphia, PA 19106
D E T E N TI O N OF USICE IN
PHILADELPHIA THE DEPARTMENT ATTORNEY FOR APPELLEE
OF HOMELAND SECURITY,
Appellees
OPINION OF THE COURT
Appeal from the United States District
ALDISERT, Circuit Judge.
Court for the Eastern District
of Pennsylvania In the petition by Errol O’Neil
(Civil No. 03-cv-06064) Nugent at No. 02-4329 for review of a
District Judge: Honorable J. Curtis final order of removal by the Board of
Joyner Immigration Appeals (“BIA”), we must
decide whether we have jurisdiction
inasmuch as Nugent was ordered removed
Submitted under Third Circuit LAR from the United States under 8 U.S.C. §
34.1(a) 1227(a)(2)(A)(ii) for having been
March 22, 2004 convicted of two crimes involving moral
_________ turpitude. In the consolidated appeal at
04-1541 from a judgment of the United
Before: SLOVITER, RENDELL and States District Court for the Eastern
ALDISERT, Circuit Judges District of Pennsylvania we must decide
whether a conviction under a Pennsylvania
theft by deception statute constitutes an
aggravated felony.
Steven A. Morley
We hold that we lack jurisdiction
Morley, Surin & Griffin, P.C.
in the petition for review of the final order
325 Chestnut Street, Suite 1305-P
of removal and will dismiss the petition,
Philadelphia, PA 19106
but, for reasons other than those stated by
the district court, we affirm the judgment
of the district court on the aggravated
ATTORNEY FOR APPELLANT
felony issue denying the writ of habeas
2
corpus without prejudice to Appellant’s Pleas of Montgomery County for the State
applying to the Attorney General for of Pennsylvania of theft by deception in
cancellation of the removal order pursuant violation of 18 Pa. Cons. Stat. Ann. §
to 8 U.S.C. § 1229b. We will first address 3922(a) (West 1983 & Supp. 2000). He
the petition for review. was sentenced to a term of imprisonment
of not less than six months but not more
I.
than 23 months.
Nugent is a native and citizen of
It was on the basis of Nugent’s
Jamaica who entered the United States on
2000 Pennsylvania conviction that the
August 25, 1971, as a lawful permanent
Immigration and Naturalization Service
resident when he was seven years old. On
(“INS”)1 charg e d N u g ent w ith
January 30, 1984, he was convicted in the
removability from the United States under
Court of Common Pleas of M ontgomery
8 U.S.C. § 1227(a)(2)(A)(iii) for having
County for the State of Pennsylvania of
been convicted of an aggravated felony as
theft by unlawful taking (theft of movable
defined in 8 U.S.C. § 1101(a)(43)(G). The
property) in violation of 18 Pa. Cons. Stat.
original Notice to Appear stated:
Ann. § 3921(a) (West 1973 & Supp. 1983)
and receiving stolen property in violation 4. You were, on November 28,
of 18 Pa. Cons. Stat. Ann. § 3925(a) (West 2000, convicted in the Court of
1973 & Supp. 1983). The crime involved Common P le a s, C oun ty of
theft of two typewriters valued at a total of Montgomery, Commonwealth of
approximately $1,900. Nugent could have
been sentenced to five years imprisonment,
but instead he was sentenced to 12 months 1
The INS is now known as the
on probation. Theft of the two typewriters
Bureau of Citizenship and Immigration
valued at this amount constituted a
Services (“BCIS”) within the Department
misdemeanor of the first degree. See 18
of Homeland Security (“DHS”). See
Pa. Cons. Stat. Ann. § 3903(b) (West 1973
Homeland Security Act of 2002, Pub. L.
& Supp. 1983). A misdemeanor of the
No. 107-296, § 451, 116 Stat. 2135, 2195
first degree was punishable by up to five
(2002) (codified at 6 U.S.C. § 271 (Supp.
years imprisonment. See 18 Pa. Cons.
2003)). Within the BCIS is the Office of
Stat. Ann. § 1104(1) (West 1983); Com v.
United States Immigration Enforcement
Schreiber, 466 A.2d 203, 208 (Pa. Super.
(“USICE”). Id. Because the operative
1983) (holding that a sentence of five
events in this case took place before the
years imprisonment would have been
name change, INS is used here. In the
appropriate for a first-degree misdemeanor
appeal at 04-1541 the principal defendant
conviction of theft by unlawful taking).
in the habeas corpus proceedings was
On November 28, 2000, Nugent Patricia Mullen, Associate Special Agent
was convicted in the Court of Common in charge of the Philadelphia office of
USICE.
3
Pennsylvania for the offenses of Pleas of Montgomery County for
THEFT BY DECEPTIO N the State of Pennsylvania, of Theft
(DOCKET # 1061-00) and of Movable Property and Theft by
DRIVING UNDER THE Receiving Stolen Property, in
INFLUENCE (DOCKET # 1974- violation of Pennsylvania Criminal
00), in violation of Title 18, Laws Sections 3921 and 3925.
Pennsylvania Statutes, Section
3922 and Title 75, Pennsylvania
Statutes, Section 3731. 7. The conviction alleged above in
Allegation No. 6 and the conviction
alleged in Allegation No. 4 on the
(App. at 206.) Notice to Appear dated February
14, 2001 did not arise out of a
On September 7, 2001, Nugent filed
single sc he me of c r im in al
a motion to terminate removal proceedings
misconduct.
on the basis that his conviction for theft by
deception under Pennsylvania law did not (App. at 138.)
constitute an aggravated felony theft
At a hearing before the IJ on
offense as defined by 8 U.S.C. §
October 11, 2001, the following colloquy
1101(a)(43)(G).
took place:
On September 14, 2001, an
Judge to Mr. Mazer
immigration judge (“IJ”) issued an
[representing petitioner
interlocutory order denying Nugent’s
Nugent]:
motion to terminate removal proceedings.
The IJ concluded that Nugent’s conviction ....
for theft by deception constituted an
Q. And how do you
aggravated felony theft under 8 U.S.C. §
plead allegations six and
1101(a)(43)(G).
seven?
On September 12, 2001, the INS
charged Nugent with being subject to
removal under 8 U.S.C. § A. We will
122 7(a)(2 )(A)(ii) for having been concede those
convicted of two or more crimes involving allegations.
moral turpitude. In notifying Nugent of
the additional charge, the INS stated in its
“Additional Charges of Q. Okay. You concede that they
Inadmissibility/Deportability” Form I-261: constitute crimes involving
moral turpitude then?
6. You were convicted on January
30, 1984 in the Court of Common
4
A. Ah, yes. The BIA had jurisdiction pursuant
to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 to
(App. at 124.)
review the decision of the IJ. We have
On the same day, October 11, 2001, jurisdiction pursuant to 8 U.S.C. §
the IJ issued an oral decision concluding 1252(a)(1) and (b) “to determine our
that Nugent was subject to removal as an jurisdiction under [ 8 U.S .C.] §
aggravated felon. The IJ then added: 1252(a)(2)(C).” Drakes v. Zimski, 240
“Further, in court today counsel has F.3d 246, 247 (3d Cir. 2001). Section
conceded the allegations set forth in the I- 1252(a)(2)(C), the INA’s no-review
261. The Court finds the respondent is provision, bars us from reviewing any final
subject to removal as charged therein.” removal order for an alien who has been
(App. at 80.) As set forth above, the Form ordered removed from the United States
I-261 added paragraphs 6 and 7 in which because of convictions for either an
the INS listed Nugent’s 1984 conviction aggravated felony or two crimes of moral
for theft by unlawful taking and referenced turpitude, among other offenses. Thus, we
his 2000 conviction for theft by deception. m u s t “ d e te r m i n e w h e t h e r t h es e
Thus, the two crimes involving moral jurisdictional facts are present.” Valansi v.
turpitude consisted of theft by deception, Ashcroft, 278 F.3d 203, 207 (3d Cir.
conviction date November 28, 2000, as 2002).
contained in the INS’ Allegation No. 4 in
In determining the pure legal
the original Notice to Appear, and theft by
questions before us that govern our own
unlawful taking, conviction date January
jurisdiction, we apply a de novo standard
30, 1984, as contained in the INS’
of review. Id.
Allegation Nos. 6 and 7 in the Form I-261.
The IJ specifically ordered Nugent III.
removed from the United States based on
The INA’s no-review provision
convictions for both the aggravated felony
provides in relevant part:
listed in the Notice to Appear and the two
crimes of moral turpitude listed in the N o t w i t h st a nd i n g a n y o th e r
“Form I-261, Additional Charges of provision of law, no court shall
Inadmissibility/Deportability.” have jurisdiction to review any
final order of removal against an
Nugent appealed the IJ’s decision to
alien who is removable by reason
the BIA, and on November 18, 2002, the
of having committed a criminal
BIA affirmed the IJ’s decision without
offense covered in sectio n
opinion, thereby adopting the IJ’s decision
1182(a)(2) or 1227(a)(2)(A)(iii)
as the final agency determination. Nugent
[aggravated felony], (B), (C), or
timely appealed the BIA’s order.
(D) of this title, or any offense
II. covered by section
1227(a)(2)(A)(ii) [two or more
5
crimes involving moral turpitude, .” 8 U.S.C. § 1227(a)(2)(A)(ii). Both
not arising out of a single scheme crimes of moral turpitude could have
of criminal misconduct] of this title resulted in sentences “of one year or
for which both predicate offenses longer[,]” id. § 1227(a)(2)(A)(i)(II), and
are, without regard to their date of whether the crimes were committed more
commission, otherwise covered by than five years after Nugent’s admission to
section 1227(a)(2)(A)(i) of this the United States is irrelevant under 8
title. U.S.C. § 1252(a)(2)(C). Therefore, under
the no review provision, § 1252(a)(2)(C),
we lack jurisdiction to review the removal
8 U.S.C. § 1252(a)(2)(C). order based on Nugent’s having committed
two crimes involving moral turpitude, §
1227(a)(2)(A)(i)-(ii).
Nugent’s 1984 conviction for theft
Although Nugent concedes that he
by unlawful taking (theft of movable
is subject to removal based on his
property) was a crime involving moral
convictions for two crimes involving
turpitude. The INA does not define moral
moral turpitude, he nevertheless contests
turpitude, but we have noted that a legal
the order of removal based on the
dictionary defines the term as “[c]onduct
aggravated felony conviction because he
that is contrary to justice, honesty, or
contends that the Pennsylvania theft by
morality.” De Leon-Reynoso v. Aschroft,
deception conviction set forth in paragraph
293 F.3d 633, 636 (3d Cir. 2002) (quoting
No. 4 of the Notice to Appear does not
Black’s Law Dictionary 1026 (7th ed.
constitute an aggravated felony under 8
1999)). Although Nugent received a
U.S.C. § 1101(a)(43)(G). For its part, the
sentence of only 12 months on probation
government concedes that “M r. Nugent is
for the 1984 conviction, he could have
removable both by reason of having
been sentenced to up to five years
committed an offense that is properly
imprisonment. See 18 Pa. Cons. Stat. Ann.
considered an aggravated felony and by
§ 1104 (West 1983); 18 Pa. Cons. Stat.
reason of having committed two crimes
Ann. §§ 3903 and 3921 (West 1973 &
involving moral turpitude for which,
Supp. 1983).
respectively, he could have received a
Likewise, Nug ent’s 2000 sentence of one year . . . .” (Br. for Resp’t
conviction for theft by deception at 2.) The government nevertheless asks
constituted a crime involving moral us to address the aggravated felony issue
turpitude. Nugent received a sentence of to obviate the need for Nugent to seek
imprisonment of not less than six months resolution of that issue via a petition for
but not more than 23 months. The 1984 writ of habeas corpus. (Id. at 18-19 n.4.)
and 2000 crimes did “not aris[e] out of a
Having decided, or more properly,
single scheme of criminal misconduct . . .
because the parties stipulate, that we have
6
no jurisdiction to review the final order Nugent asks us to review not the
bottomed on moral turpitude grounds, we final order but one of two reasons for
must now decide whether this court removal in the final order. For its part, the
possesses jurisdiction to consider the issue government recognizes that we lack
both parties have urged upon us by brief jurisdiction because of the moral turpitude
and oral argument, to-wit, whether a convictions but somehow seeks a decision
conviction under the Pennsylvania theft by on the aggravated felony issue. To assist
deception statute constitutes an aggravated us in deciding this very difficult issue, on
felony under 8 U.S.C. § 1101(a)(43)(G). February 11, 2004, we requested
It is to this issue that we now turn. supplemental briefing:
IV. By statute, our jurisdiction is
limited to reviewing final orders, 8
A federal court, whether trial or
U.S.C. § 1252(a)(1), (b), (d) and
appellate, is obliged to notice want of
(g), not a particular reason
jurisdiction on its own motion. Mansfield,
supporting the order. If we do not
C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,
have jurisdiction to review the
381-386 (1884). We have jurisdiction in
order based on one of the reasons
immigration cases to determine whether
(i.e., Petitioner’s removability on
jurisdictional facts are present. Drakes,
grounds of two crimes of moral
240 F.3d at 247. “Graven in stone is the
turpitude), what authority do we
maxim that parties cannot confer
have to review another reason
jurisdiction on a federal court by consent
supporting the order (i.e., whether
or stipulation.” Reale Int’l, Inc. v. Federal
the BIA erred in determining that
Republic of Nigeria, 647 F.2d 330, 331
Petitioner’s conviction constitutes
(2d Cir. 1981). “Without jurisdiction the
an aggravated felony)?
court cannot proceed at all in any cause.
Jurisdiction is power to declare the law,
and when it ceases to exist, the only
In Petitioner’s response dated March 1,
function remaining to the court is that of
2004, he advised the court:
announcing the fact and dismissing the
cause.” Steel Co. v. Citizens for a Better In October 2003, Petitioner filed a
Env’t, 523 U.S. 83, 94 (1998) (quoting Ex petition for writ of habeas corpus in
parte McCardle, 7 Wall. 506, 514 (1869)). the Eastern District of Pennsylvania
“For a court to pronounce upon the which was docketed at No:
meaning or the constitutionality of a state 03-cv-6064 and assigned to the
or federal law when it has no jurisdiction Honorable J. Curtis Joyner, Judge
to do so is, by very definition, for a court of the Eastern District of
to act ultra vires.” Id. at 101-102. Pennsylvania. That petition for writ
of habeas corpus raised the single
V.
question that has been presented to
7
this Court, whether theft by view of this consolidation, and in light of
deception under Pennsylvania law the thorny jurisdictional problem, we will
is a theft offense or a fraud/deceit not consider the aggravated felony issue in
offense. The reason for filing that this proceeding at No. 02-4329. Rather,
petition at that time was that Mr. we will consider it in the appeal of the
Nugent had just been detained by district court’s habeas corpus judgment at
DHS and this Court denied a stay No. 04-1541.
of removal. The government
Accordingly, we will dismiss for
opposed the stay of removal in this
lack of jurisdiction the petition to review
Court on jurisdictional grounds –
the removal order based on Nugent’s
those raised recently by this Court –
having committed two crimes involving
but that denial of the stay did not
moral turpitude. See 8 U.S.C. §§
state a basis for the motions panel
1252(a)(2)(C) and 1227(a)(2)(A).
decision denying the stay. All facts
regarding this Court's consideration We now turn to the appeal from the
of the matter, as well as the denial district court at No. 04-1541.
of the stay, was set forth in the
VI.
petition for a writ of habeas corpus.
Judge Joyner issued a stay shortly Nugent contends that the district
after the filing of the petition, but, court erred in denying his habeas corpus
on February 19, 2004, denied the petition because it held his 2000
Petition for Writ of Habeas Corpus, Pennsylvania conviction for theft by
holding, without opinion or deception was “a theft offense (including
ana1ysis, that theft by deception is receipt of stolen property) or burglary
an aggravated felony. On February offense for w hich th e term of
27, 2004, Petitioner appealed the imprisonment [is] at least one year.” 8
order of Judge Joyner to this Court. U.S.C. § 1101(a)(43)(G). Because the
Attached hereto is a copy of the denial of the writ of habeas corpus was a
notice of appeal as well as the final order and an appeal was timely we
docketing statement from this have jurisdiction. 42 U.S.C. § 1291. Our
Court. review is plenary on this issue involving
statutory construction. Valansi, 278 F.3d
at 207.
The habeas appeal has been
Appellant represents to us that
docketed in this Court at 04-1541. By
because in October, 2003 he was detained
order dated M arch 5, 200 4, we
by the DHS, he applied for writ of habeas
consolidated the habeas appeal from the
corpus under 28 U.S. C. § 2411(c) in the
United States District Court at No. 04-
district court. “The petition . . . raised the
1541 with the present petition to review
single question that has been presented to
the Order of the BIA at No. 02-4329. In
8
this Court, whether theft by deception previously addressed whether a conviction
under Pennsylvania law is a theft offense under Pennsylvania’s theft by deception
or a fraud/deceit offense.” (Ltr. of statute comes within the rubric of an
Petitioner’s Counsel to the court dated aggravated felony as it relates to a “theft
March 1, 2004, p. 3.) Although by order offense” under 8 U.S. C. § 1101(a)(43)(G)
dated February 19, 2004, the district court and/or “an offense . . . that involves fraud
denied the petition without a detailed or deceit” u n de r 8 U .S .C §
statement of reasons, it stated in a footnote 1101(a)(43)(M)(i).
to its order: “This Court finds that the
The record indicates that on January
Petitioner was convicted of an aggravated
8, 1999, Nugent attempted to make two
felony and as such, he is removable. See 8
withdrawals totaling $3,450 from an
U.S.C. § 1101(a)(43)(G).”
account in the name of Earl Rampert at
For the reasons that follow, we Willow Grove Bank in Abington
disagree with the district court’s sole Township, Pennsylvania. Earlier on the
reason for denying the writ. We hold that same day, Nugent had made separate
the Appellant is removable, but not on the withdrawals of $1,450 and $2,000,
basis of Section 1101(a)(43)(G) for having respectively, from the Willow Grove and
been convicted of an aggravated felony, as Hatboro branches of Willow Grove Bank.
stated by the court, but solely on the basis The account from which Nugent attempted
of 8 U.S.C. § 1227(a)(2)(A)(ii) for having to make the withdrawals had been opened
been convicted of two or more crimes with a $100 deposit on December 13,
involving moral turpitude. We will affirm 1998, and a check for $4,831.26 had been
the judgment of the district court on this deposited into the account on January 6,
ground only, and apply the tenet that we 1999. Nugent admitted to police that the
may affirm for reasons completely $4,831.26 check was counterfeit.
different from those advanced by the
On November 28, 2000, Nugent
district court. PAAC v. Rizzo, 502 F. 2d
was convicted in the Court of Common
306, 308 n.1 (3d Cir. 1974); cert. denied,
Pleas of Montgomery County for the State
419 U.S. 1108 (1975) (“[i]t is proper for
of Pennsylvania of theft by deception in
an appellate court to affirm a correct
violation of 18 Pa. Cons. Stat. Ann. § 3922
decision of a lower court even when that
(West 1983 & Supp. 2000). 2 Section 3922
decision is based on an inappropriate
ground”) (emphasis in original). We now
discuss in detail why we disagree with the
2
district court’s stated reason that Nugent’s The statute reads:
conviction under Pennsylvania’s theft by
deception statute, 18 Pa. Cons. Stat. Ann. A person is guilty of theft if he
§ 3922, constitutes an “aggravated felony” intentionally obtains or withholds
as defined by the INA. We have not property of another by deception.
A person deceives if he
9
is taken word for word from § 223.3 of the “aggravated felony” any “theft offense
Model Penal Code (“Code”) promulgated (including receipt of stolen property) and
by the American Law Institute (“ALI”) in robbery for which the term of
1962. Nugent was sentenced to a term of imprisonment [is] at least one year.”
imprisonment of not less than six months
Nugent argues that because his
but not more than 23 months.
conviction for theft by deception involved
VII. fraud or deceit, it is not a “theft offense”
under 8 U.S.C. § 1101(a)(43)(G), but a
The IJ concluded and the BIA
fraud or deceit offense under 18 U.S.C. §
agreed that Nugent’s Pennsylvania
1101(a)(43)(M)(i), in which “[t]he term
conviction of theft by deception came
‘aggravated felony’ means . . . an offense
within the purview of 8 U.S.C. §
that . . . involves fraud or deceit in which
1101(a)(43)(G), that includes as an
the loss to the victim or victims exceeds
$10,000[.]” The loss suffered by the
victims of Nugent’s theft by deception did
intentionally: not exceed $10,000, and thus the INS did
not charge him with removability based on
(1) creates or reinforces a false Section 1101(a)(43)(M)(i).
impression, including false
Whether Nugent’s theft by
impressions as to law, value,
deception offense is a “theft offense”
intention or other state of mind;
and/or a “an offense involving fraud or
but deception as to a person’s
deceit” is a distinction with a serious
intention to perform a promise
difference, as it carries a significant
shall not be inferred from the fact
consequence for Nugent. There is no
alone that he did not subsequently
minium dollar amount to constitute an
perform the promise;
aggravated felony if the Pennsylvania
(2) prevents another from
conviction is a “theft offense” as
acquiring information which
contemplated by Section 1101(a)(43)(G),
would affect his judgment of a
but if it is “an offense that . . . involves
transaction; or
fraud or deceit” and the loss to the victim
(3) fails to correct a false
or victims is $10,000 or less, it would not
impression which the deceiver
qualify as an aggravated felony under
previously created or reinforced,
Section 1101(a)(43)(M )(i). Here, the bad
or which the deceiver knows to be
check amounted to only $4831.26.
influencing another to whom he
stands in a fiduciary or Carrying his reasoning one step
confidential relationship. further, Nugent argues that although he is
subject to removal based on his
18 Pa. Cons. Stat. Ann. § 3922(a) (West convictions for two crimes involving
1983 & Supp. 2000).
10
moral turpitude, convictions on this 183, 189 (1984) (internal quotations and
ground alone do not prevent him from citations omitted).
applying for cancellation of the removal
Moreover, Nugent contends that
order pursuant to 8 U.S.C. § 1229b.
Congress’ inclusion in Se ction
Having a conviction that is deemed an
1101(a)(43)(M)(i) of the language “fraud
aggravated felony, however, would make
or deceit in which the loss to the victim or
Nugent ineligible to apply for the
victims exceeds $10,000” demonstrates
cancellation. See 8 U.S.C. § 1229b(a)(3)
that Congress did not intend fraud or
(stating that the Attorney General may not
deceit offenses involving $10,000 or less
cancel removal in the case of an alien who
to nevertheless be defined as aggravated
has been convicted of an aggravated
felonies under Section 1101(a)(43)(G).
felony).
See INS v. Cardoza-Fonseca, 480 U.S.
Nugent argues first that the 421, 432 (1987) (explaining “where
determination of what constitutes a “theft Congress includes particular language in
offense” in the context of the INA’s one section of a statute but omits it in
definition of an “aggravated felony” is another section of the same Act, it is
made by reference to a federal standard generally presumed that Congress acts
rather than the labels attached to crimes by intentionally and purposefully in the
Pennsylvania’s criminal laws. See Taylor disparate inclusion or exclusion”) (internal
v. United States, 495 U.S. 575, 592 (1990) quotations and citation omitted).
(stating that the term “burglary” in 18
Although we reject Nugent’s
U.S.C. § 924(e) “must have some uniform
“either-or” argument, for the reasons that
definition independent of the labels
follow, we agree with his contention that
employed by the various States’ criminal
an offense under Pennsylvania’s theft by
codes”); In re V-Z-S-, 22 Interim Decision
deception statute falls within Section
1338 (BIA 2000) (explaining that “we
1101(a)(43)(M)(i) so that it would not be
generally apply a federal standard in
an aggravated felony unless the victim
determining whether a state offense fits
suffered a loss exceeding $10,000. But we
within the aggravated felony definition”).
must go further, we must decide whether
the Pennsylvania statute must also meet
Nugent is correct in saying that the requirements of Sectio n
Pennsylvania’s labeling of the crime as 1101(a)(43)(G).
theft by deception is not determinative of
VIII.
its status as a theft offense under Section
1101(a)(43)(G). Rather, this court must In aligning state and federal
examine the plain language of the INA and criminal offenses, previously this court has
“assume that the legislative purpose is applied a “formal categorical approach”
expressed by the ordinary meaning of the that requires comparison of the elements
words used.” INS v. Phinpathya, 464 U.S. of the state law offense to see if they
11
“encompass[] acts beyond those subject to Under this approach, “we must
prosecution under the federal definition.” examine [Penns ylvania’s th eft b y
Drakes, 240 F.3d at 248-249 (noting the deception] law to see if it encompasses
Supreme Court’s endorsement of such an acts beyond those subject to prosecution
approach in Taylor, 495 U.S. at 600). under the federal [theft offense]
definition[,]” as contemplated by 8 U.S.C.
Where federal criminal statutes use
§ 1101(a)(43)(G). Id. at 249. More
words of established meaning
specifically, we must determine whether a
without further elaboration, courts
Pennsylvania theft by deception offense is
typically give those terms their
also an “offense involving fraud or deceit”
common law definition. Moskal v.
set forth in 8 U.S.C. § 1101(a)(43)(M)(i).
United States, 498 U.S. 103, 114 . .
. (1990); Gilbert v. United States, Unfortunately the INA does not
370 U.S. 650, 655 . . . (1962) ("in define “theft offense,” and equally
the absence of anything to the unfortunately, Congress has not supplied
contrary it is fair to assume that a definition of “theft” or “larceny” in the
Congress used ['theft'] in the statute galaxy of federal offenses. And, in the
in its common-law sense."). If context of the facts in this case, we are
research into the common law unwilling to say that the contretemps
yields several co mp eting involving a theft offense crime and a fraud
definitions, however, courts should or deceit crime is free from ambiguity. We
look to the reading that "best therefore must refer to the teachings of
accords with the overall purposes Drakes and follow the “formal categorical”
of the statute" even if it is the approach.
minority view. Moskal, 498 U.S. at
IX.
116-17 . . . . Where the traditional
definition is out of step with the Our starting point is clear. Where
modern meaning of a term, more federal criminal statutes use words of
"generic, contemporary" established meaning without further
definitions--such as those found in elaboration, courts typically give those
state statutes--may apply. See terms their common law definition.
Taylor, 495 U.S. at 596, 598 . . . .
Furthermore, "Congress' general
The common law spoke in terms of
purpose in enacting a law may
“larceny,” rather than “theft” and the
prevail over this rule of statutory
word s a r e use d inte r c hange ably.
construction" altogether. Id.
Blackstone defined larceny simply as “the
felonious taking and carrying away of the
personal goods of another.” 2 Blackstone,
Drakes, 240 F.3d at 249.
Commentaries on the Laws of England,
Book IV, at 230 (1879). But in the
12
development of the common law, courts excluded from the common law offense of
defined larceny in more comprehensive larceny. See Bell v. United States, 462
terms. The refined common law U.S. 356, 360 (1983).
description appears to be “the felonious
Thus, it would seem that the
taking by trespass and carrying away by
modern crime of obtaining property by
any person of the personal goods or things
false pretenses was not even a crime at
of another from any place, without the
common law. To plug the loophole, in
latter’s consent and with the felonious
1757 Parliament enacted a statute that
intent to deprive the owner of his or her
punished one who “knowingly and
property permanently and to convert it to
designedly, by false pretense or pretenses,
the taker’s own use . . . .” 50 Am. Jur. 2d,
shall obtain from any person or persons,
Larceny § 1. Professor Wayne R. LaFave
money, goods, wares or merchandises,
supplies a concise summary:
with intent to cheat or defraud any person
Larceny at common law may be defined as or persons of the same.” 30 Geo II, c. 24
the (1) trespassory, (2) taking and (3) (1757) (cited in LaFave, supra, at 114). In
carrying away of the (4) personal property the eighteenth century, “[t]he theoretical
(5) of another (6) with intent to steal it. distinction between false pretenses and
American statutes dealing with larceny as larceny by trick may be stated simply. If a
a discrete offense have generally left the thief, through his trickery, acquired title to
six elements of the crime unchanged, the property from the owner, he has
except that there has been considerable obtained property by false pretenses; but if
enlargement of the kinds of property which he merely acquired possession from the
can be the subject of larceny. owner, he has committed larceny by trick.”
Bell, 462 U.S. at 359-360 (emphasis
added).
Wayne R. LaFave, 3 Substantive Criminal
Specific to Pennsylvania, our
Law § 19.2, at 62 (2nd ed. 2003) (footnote
research discloses that the false pretenses
omitted).
statute, 30 Geo II, c. 24, was not
Before statutory offenses appeared “received” by the “province” prior to the
on the scene, “[c]hoses in action including Declaration of Independence and the
bonds and notes of all classes, according to subsequent creation of the present
the common law, are not the subject of Commonwealth:
larceny, being mere rights of action,
An act was passed on the 28th
having no corporeal existence; though . . .
January, 1777, entitled ‘An Act to
a person may be indicted for stealing the
revive and put in force such and so
paper on which they are written.” I
much of the late laws of the
Wharton’s Criminal Law § 876, at 766
province of Pennsylvania, as is
(10th ed. 1896) (emphasis added). A bank
judged necessary to be in force in
check was considered a chose-in-action
13
this commonwealth.’ In this act it in the common law because the crime of
is provided, that the common law, false pretenses, a fraud or deceit crime,
and such of the statute laws of was the product of Parliament and not the
England as have been heretofore in collective experience of the judiciary.
force in the said province, shall be
Following the direction of the
in force, except as hereafter
“categorical approach” in Drakes, if
excepted.
research into the common law does not
supply the answer, we look to the reading
that best accords with the overall purpose
Samuel Roberts, Digest of Select British
of the statute. In so doing, however,
Statutes xv (1847) (hereinafter “Digest”)
“[w]here the traditional definition is out of
(discussed in Commonwealth v. Guy, 41
step with the modern meaning of a term,
Pa. D & C 2d 151, 156 (1966) (Aldisert,
more ‘generic, contemporary’ definitions
J.)). An examination of Pennsylvania’s
– such as that found in state statutes – may
official compendium of British Statutes
apply.” Drakes, 240 F.3d at 249 (quoting
that were deemed to be in effect at the time
Taylor, 495 U.S. at 596).
Pennsylvania became a state reveals that
the statute 30 Geo II, c. 24 was not X.
included. See generally, Digest
As early as 1925, Judge Cardozo
(containing the full December 14, 1808,
was preaching the use of generic,
Report to the Pennsylvania legislature by
contemporary definitions rather than older,
the Justices of the Supreme Court of
if not truly ancient, approaches. When
Pennsylvania “of the English statutes
speaking of the difference between larceny
which are in force in the said
and embezzlement, he said, “[t]he
commonwealth, and of those of the said
distinction, now largely obsolete, did not
statutes which in their opinion ought to be
ever correspond to any essential difference
incorporated into the statute laws of the
in the character of the acts or in their effect
said commonwealth[,]” id. at xv).
upon the victim. The crimes are one to-day
From the foregoing discussion, we in the common speech of men as they are
must conclude that the government may in moral quality.” Van Vechten v. Am.
not find support for its position in the Eagle Fire Ins. Co, 146 N.E. 432, 433
common law crime of larceny, or theft, (N.Y. 1925).
because the property that was the subject
In 1983, the Supreme Court was
of its asportation had to be tangible and
faced with a problem similar to what we
corporeal. Choses-in-action, like bonds,
face in this case. Bell, 462 U.S. at 357.
notes, and, to be sure, modern bank
Here, we must decide whether the
checks, were not considered goods or
Pennsylvania offense of larceny by
property in the context of common law
deception (trick) involving $10,000 or less
larceny. Similarly, Nugent finds no succor
is an “aggravated felony” as defined in
14
Section 1103(a)(43) of the INA. Whereas to two other aspects of § 2113(b) that
in Bell, the Court had to interpret the bank indicate Congress’ “intention to go beyond
robbery provision, 18 U.S.C. § 2113(b), the common-law definition of larceny.”
that imposes criminal sanctions on Id. First, whereas common law larceny
“[w]hoever takes and carries away, with excluded “theft of a written instrument
intent to steal or purloin, any property or embodying a chose in action[,]” Section
money or any other thing of value, 2113(b) is broader in that it includes “any
exceeding $100 belonging to, or in the property or money or any other thing of
care, custody, control, management, or value exceeding $100.” Id. (citing W.
possession of any bank, credit union, or LaFave & A. Scott, Handbook on Criminal
any savings and loan association.” 462 Law 633 (1972)). Second, whereas
U.S. at 357-358. common law larceny required theft from
the owner’s possession, Section 2113(b) is
In Bell, the Court discussed
more expansive in that “[i]t applies when
extremely technical distinctions present in
the property ‘belong[s] to,’ or is ‘in the
old interpretations of two offenses –
care, custody, control, management, or
larceny by trick and false pretenses. Bell
possession of,’ a covered institution.” Id.
opened a bank account and deposited
at 360-361 (citations omitted). Based on
therein a $10,000 check belonging to
the above analysis, the Court held that
another. After the check cleared, he closed
notwithstanding the “common law” label
the account and was paid the total balance
attached to § 2113(b), more “generic,
in cash. He was arrested and convicted.
contemporary” definitions proscribe Bell’s
The question for decision was whether the
conduct here, explaining:
restricted common law definition of
robbery should apply. Although the court Although the term “larceny”
was faced with a robbery statute, its appears in the legislative reports,
discussion concentrated on concepts of the congressional purpose plainly
larceny by trick. was to protect banks from those
who wished to steal banks’ assets –
The Court concluded, “Congress
even if they used no force in doing
has not adopted the elements of larceny in
so . . . . To the extent that a bank
common-law terms[,]” explaining that the
needs protection against larceny by
statutory language “takes and carries
trick, it also needs protection from
away” represents merely one element of
false pretenses. We cannot believe
common law larceny and “is entirely
that Congress wished to limit the
consistent with false pretenses.” Id. at 360.
scope of the amended Act’s
Moreover, the statutory language “with
coverage, and thus limit its
intent to steal or purloin” has no
remedial purpose, on the basis of an
established common law meaning. Id.
arcane and artificial distinction
(citing United States v. Turley, 322 U.S.
more suited to the social conditions
407, 411-412 (1957)). The Court pointed
15
of 18th century England than the (i.e. just theft and receipt); rather, with its
needs of 20th century America. word choices, Congress indicated that the
Such an interpretation would signal phrase ought to be given a broad read.”
a return to the “incongruous See Hernandez-M ancilla v. INS, 246 F.3d
results” that the 1937 amendment 1002, 1008 (7th Cir. 2001); see also
was designed to eliminate. United States v. Corona-Sanchez, 291 F.3d
1201, 1205 (9th Cir. 2002) (en banc)
462 U.S. at 362.
(“Congress used the words ‘theft offense’
Thus, the marching order we rather than just ‘theft,’ thus indicating that
receive from the Court is that in the phrase ought be read to incorporate
interpreting federal criminal statutes where different but closely related constructions
there is no specific definition, do not fall in modern state statutes.”). Under the
in love with the label attached to an Code, “theft” includes theft by unlawful
offense. taking or disposition; theft by deception;
theft by extortion; theft of property lost,
We now turn to an analysis of the
mislaid, or delivered by mistake; receiving
“generic, contemporary” definitions of the
stolen property; theft of services; theft by
t e r m s “ t h e f t o f f e n s e ,” S e c t i o n
failure to make required disposition of
1103(a)(43)(G), and “an offense that
funds received; and unauthorized use of
involves fraud or deceit,” Section
automobiles and other vehicles. Model
1103(a)(43)(M)(i), to determine whether
Penal Code §§ 223.2-223.9. In
either or both of these “aggravated
Hernandez-M ancilla, the Seventh Circuit
offense” provisions applies to offenses
engaged in an extensive discussion of the
under Pennsylvania’s theft by deception
background of the term “theft offense” as
statute. For this we look to logical
used by Congress in the INA, including an
reasoning and the background of the
evaluation of theft offenses set forth in the
“aggravated offense” provisions enacted
Code, and came up with the definition: “a
by Congress and the foundation of the
taking of property or an exercise of control
theft by deception statute adopted by
over property without consent.” 246 F.3d
Pennsylvania’s legislature.
at 1009. The Ninth Circuit has adopted
XI. this definition, Corona-Sanchez, 291 F.3d
at 1205, and a panel within this Circuit has
At the onset, we agree with our
relied on it in a not-for-publication
sister circuits that it was Congress’ intent
opinion, Williams v. INS, 54 Fed. Appx.
for a “theft offense” to include more than
55 (3d Cir. 2002) (Judges Fuentes, Sloviter
what was considered larceny at common
and Debevoise).
law: “[B]y choosing the words ‘theft
offense’ rather than just ‘theft,’ . . . We agree that given this broad
Congress signaled that it was not definition, Nugent’s bad check transaction
presenting an exhaustive list of offenses for which he was convicted under the
16
Pennsylvania theft by deception statute is check is regarded as property in the
a “theft offense” as set forth in Section context of “generic, contemporary”
1103(a)(43)(G). Indeed, a worthless check larceny, or theft, concepts requiring
is “property” within the scope of “caption” (when the actor secured
Pennsylvania’s theft by deception statute. dominion over the property of another) and
As we have explained previously, in “asportation” (carrying away of the other’s
common law larceny it was not so property), and therefore Nugent’s bad
regarded: “common law larceny was check transaction for which he was
limited to thefts of tangible personal convicted under Pennsylvania’s theft by
property. This limitation excluded, for deception statute is a “theft offense” under
example, the theft of a written instrument 18 U.S.C. § 1101(a)(43)(G). This does
embodying a chose in action.” Bell, 462 not, however, end our inquiry.
U.S. at 362. Pennsylvania’s consolidated
The sole question for decision is
theft statute, which we note was taken
whe the r with in the p urvie w of
verbatim from Code § 223.0, defines
Pennsylvania’s theft by deception statute,
“property” in the context of theft offenses:
Section 3922, Nugent’s conviction for
Anything of value, including real passing a bad check represents “an offense
estate, tangible and intangible involving fraud or deceit” under 8 U.S.C.
personal property, contract rights, § 1101(a)(43)(M)(i), notwithstanding that
c h o ses-in-action , and o t h er it also constitutes a “theft offense” under 8
interests in or claims to wealth, U.S.C. § 1101(a)(43)G). If we decide that
admission or transportation tickets, Nugent’s conviction is “an offense that
captured or domestic animals, food involves fraud or deceit” as well as “a theft
and drink, electric or other power. offense,” then to qualify as an aggravated
felony under the INA it must meet the
requirements of Section
18 Pa. Cons. Stat. Ann. § 3901 (emphasis 1101(a)(43)(M)(i), loss to the victim of
added). Wharton teaches that a chose-in- more than $10,000, in addition to Section
action includes “bonds and notes of all 1101(a)(43)(G), term of imprisonment of
classes.” Wharton’s Criminal law, supra, § at least one year. Here it is stipulated that
876, at 62. A chose-in-action is defined as Nugent’s state conviction was based on a
“[a] right to receive or recover a debt, or bad check amounting to only $4,831.26,
money, or damages for breach of contract, and therefore Nugent’s conviction could
or for a tort connected with contract, but not be an aggravated felony if Section
which cannot be enforced without action,” 1101(a)(43)(M)(i) applies.
and includes “a check on a bank.” See 1
And the distinction is especially
Bouvier’s Law Dictionary 483 (8th ed.
critical to Nugent because if we determine
1914).
that both the district court in the habeas
We must conclude then that a bank corpus proceeding and the IJ in the
17
removal proceeding erred in concluding The term “offense” means “[t]he
that his state offense amounted to an doing that which a penal law forbids to be
aggravated felony under the INA, then, as done, or omitting to do what it
we have emphasized previously, Nugent commands.” Bouvier’s Law Dictionary
will be able to apply for cancellation of 2399 (3rd ed. 1914).
removal pursuant to 8 U.S.C. § 1229b.
In comparing these two subsections
Conviction of an “aggravated felony”
of Section 1101(a)(43), we are struck by
prohibits such relief. See 8 U.S.C. §
several distinctions. First, we note that (G)
1229b(a)(3).
is limited to “a theft offense;” second, in
For the reasons that follow, we are (M), Congress uses the broader term “an
persuaded that Appellant is correct in his offense” (as does every other 14 different
contention that he was not guilty of an offenses set forth in (43) (E), (H) through
aggravated felony when he was convicted (L) and (N) through (U);3 third, (M) and
of Pennsylvania’s statutory offense of theft the laundering money offense (D) are the
by deception in which the victims’ loss did only offenses listed in Section (43) that set
not exceed $10,000. a minimum amount of damages that must
be proved before the offense may qualify
XII.
as an “aggravated felony.”
Title 8 U.S.C. § 1101(a) provides:
These distinctions are significant.
(43) The term ‘aggravated felony’ It could be that because all other offense
means –
(G) a theft offense (including
3
receipt of stolen property) or Offenses relating to explosive
burglary offense for which the term materials, firearms, violence, demand for
of imprisonment [is] at least one receipt of ransom, child pornography,
year. 8 U.S.C. § 1101(a)(43)(G); racketeering influenced corrupt
organizations, gambling, prostitution,
peonage, slavery or involuntary
[and] servitude, misuse of national defense
information, alien smuggling, smuggling,
failure to appear for service of a
(M) an offense that – (i) involves sentence, bribery, counterfeiting, forgery,
fraud or deceit in which the loss to trafficking in altered vehicle
the victim or victims exceeds identification numbers, obstruction of
$10,000[.] 8 U .S.C . § justice, perjury or subornation of perjury,
1101(a)(43)(M)(i) bribery of a witness, failure to appear
before a court on a felony charge, an
attempt or conspiracy to commit an
offense described in § 1101(a)(43).
18
portions of Section 1101(a)(43) are listed Accordingly, we must decide in favor of
in the universal form “offense” rather than the Appellant because the property loss
the limited or particular form “theft involved was less than the statutory
offense,” that Congress intended that minimum.
Subsection M(i) apply only to theft
A.
offenses. Indeed, a case could be made
that was its intention. This view would First, the logicians teach us that a
find support in the rules of logic discussed term, such as “an offense” as contained in
heretofore in the distinctions between Section 1101(a)(43)(M) or “a theft
universal and particular propositions, and offense” as in Section 1101(a)(43)(G), is
distributed and undistributed terms. In any said to have both a quality and a quantity.
event, for our immediate purposes, it is not Here we are concerned with quantity. The
necessary for us to decide how many of the quantity of a proposition is universal or
other 14 offenses listed in Section particular according to whether the
1101(a)(43), if any, are limited by proposition refers to all members of a class
Subsection M(i). And we expressly do not or to some members of the class
do so. Suffice it to say, we decide here designated by its subject term. In the case
only that M(i) clearly applies to those of (M) we have a term representing all
“theft offenses” under Subsection (G) that members of a class – “an offense.”
are anchored on “fraud or deceit.”
When a term contains no
In the view we take we therefore restrictions (as in (M) – “an offense”),
reject the “either-or” arguments advanced logicians refer to it as “distributed,” and
by the parties. We reject the government’s the proposition of which it is the subject as
contention that the naked language of “universal” and is a class. In the universe
Subsection (G) compels a conclusion that of offenses set forth in Section
Nugent committed an “aggravated felony” 1101(a)(43), however, the term “theft
as defined by Section 1103(a)(43) of the offense” in (G) is predicated on some, but
INA; and also reject Nugent’s argument not all, of the distributed term “an offense”
that Subsection (G) does not apply, that he in (M), and is therefore considered as
did not commit a theft, but only an offense “undistributed” and is a subclass. The
involving fraud or deceit under Subsection proposition of which it is the subject is
(M)(i). denoted as a “particular.” See Ruggero J.
Aldisert, Logic for Lawyers: A Guide to
Instead, we hold that Congress’
Clear Legal Thinking 57-59 (3rd ed.
intent was for both G and M (i) to apply to
1997); Irving M. Copi, Introduction to
an “offense” involving “theft” and “fraud
Logic 173 (7th ed. 1986). Expressed in
or deceit,” and thus the requirements of
less technical phrasing: “All theft offenses
both provisions must be fulfilled for such
are offenses, but not all offenses are theft
an offense to qualify as an aggravated
offenses.”
felony for purposes of the INA.
19
We are taught that conclusions in Depriving another of property by
all reasoning, including legal reasoning, fraud or deceit is an offense (M).
deductive or inductive analogy, “derive[]
their validity from the axiom known as the
dictum de omni et nullo, which states: The offense of theft by deception
“What is true of the universal (or class) is deprives another of property by
true of the particular (or subclass).” theft (G).
Joseph Gerard Brennan, A Handbook of
Logic 64 (1957); see also Ralph M. Eaton,
General Logic 97 (1931). This is an axiom Therefore, the offense of theft by
concerning all or none in its class. It was deception is an offense under (M)
first established by Aristotle, but in today’s and (G).
legal reasoning it is the unstated linchpin
in formulating the major premise in every
categorical deductive syllogism that
lawyers use in their briefs, and judges in *****
their opinions. The axiom may also be
stated as: If every member of a class has
(or does not have) a certain property, and The offense of theft by deception is
if certain individuals are included in that an offense under (M) and (G).
class, then these individuals have (or do
not have) the property. See L.S. Stebbing,
A Modern Introduction to Logic 86 (6th A violation of Pennsylvania’s theft
ed. 1948) (“[t]hat one term should be by deception statute, § 3922, is an
included in another as in a whole is the offense of theft by deception.
same as for the other to be predicated of all
of the first”) (quoting Aristotle, Anal.
Priora, 24(b) 26-30). T h e r e f o re , a v i o l a t io n o f
Pennsylvania’s theft by deception
We believe, therefore, that the
statute, § 3922, is an offense under
logical framework used to support the
(M) and (G).
conclusion we reach can be set forth in the
following polysyllogism:4
4
A polysyllogism is defined as “a
series of syllogisms in which the
conclusion of one becomes the premise prosyllogism; a syllogism in which one
of the next. In such a series the syllogism premise is the conclusion of a preceding
whose conclusion becomes the syllogism is call an episyllogism.” Logic
succeeding premise is called the for Lawyers, supra, at 64.
20
With the foregoing as our analytical designedly, by false pretense or pretenses,
guide, we now proceed to evaluate the shall obtain from any person or persons,
elements of Sections 1101(a)(43)(G) and money, goods, wares or merchandises,
(M)(i) of the INA and those of the with intent to cheat or defraud any person
Pennsylvania theft by deception statute, 18 or persons of the same.” Accordingly, we
Pa. Cons. Ann. Stat. § 3922. It is beyond believe that when Congress defined a
cavil that the particular or subclass particular species of aggravated felony in
Pennsylvania statute under which Nugent Section 1101(a)(43)(M)(i) as “an offense
was convicted falls within the purview of that . . . involves fraud or deceit” it had in
“a theft offense (including receipt of stolen mind, inter alia, the statutory offense of
property) or burglary offense for which the false pretenses.
term of imprisonment [is] at least one
The Pennsylvania’s theft by
year.” 8 U.S.C. § 1101(a)(43)(G). The
deception statute under which Nugent was
sole question for decision is whether
convicted provides in part:
Pennsylvania’s theft by deception statute,
w h i c h is subs um ed in S ectio n (a) Offense defined – A person is
1101(a)(43)(G) as a particular “theft guilty of theft if he intentionally
offense,” also comes within the universal obtains or withholds property of
(or class) nature of “an offense” bottomed another by deception. A person
on fraud or deceit under Section deceives if he intentionally:
1101(a)(43)(M)(i). We hold that it does.
B.
(1) creates or reinforces a false
First, under the teachings of Bell, we impre s s i o n , i n c l u d ing f alse
decide that in drafting the INA, Congress impressions as to law, value,
recognized the distinction in theft offenses intention or other state of mind; but
coming within the common law offense of deception as to a person’s intention
larceny and the statutory offense of false to perform a promise shall not be
pretenses. It recognized that larceny inferred from the fact alone that he
required a taking (caption) and carrying did not subsequently perform the
away (asportation) of another’s property. promise . . . .
A taking occurs when the offender secures
dominion over the property, and a carrying
away requires slight movement away of 18 Pa. Cons. Stat. Ann. § 3922. In
the property. LaFave, supra, at 74. evaluating this statute, we turn to relevant
Congress knew that the offense of false provisions and the ALI’s accompanying
pretenses was not known at common law, commentary of the Code. We are obliged
and that it is statutory in nature and stems to do this because 18 Pa. Cons. Stat. Ann.
from 30 Geo II, c. 24 (1757), which § 3922, theft by deception, was adopted by
punishes one who “knowingly and the Pennsylvania legislature word for word
21
from Code § 223.3, theft by deception. cheat or wrongfully deprive another of his
property by deception or artifice.” United
Examining the o ff i c ia l
States v. Thomas, 315 F.3d 190, 200 (3d
commentaries of the ALI relating to §
Cir. 2002) (internal quotations and citation
223.3, we are informed that this section
omitted); see also United States v.
“covers that portion of the consolidated
Summers, 19 F.2d 627 (W.D. Va. 1927)
offense of theft that derives from the
(“The word ‘fraud,’ as commonly used,
traditional offense of obtaining property by
implies deceit, deception, artifice,
false pretenses . . . [which] is statutory in
trickery.”). Ballentine defines “deceit” as
origin. It stems from 30 Geo 2, ch. 24
“[a] species of fraud; actual fraud
(1757).” ALI, Model Penal Code and
consisting of any false representation or
Commentaries, § 223.3 Theft by
contrivance whe r e by one person
Deception, 180 and n.1 (1980). The ALI
overreaches and misleads another to his
makes clear that “theft by deception” states
hurt.” Ballentine, supra, at 335. By its
the elements of the statutory offense of
very language, the Pennsylvania statute is
false pretenses. Moreover, the
bottomed on “fraud” and “deceit.”
commentaries indicate that many states
have adopted § 223.3 and many other This, too, must be said. In
states have enacted statutes that also commentary accompanying the proposed
describe false pretenses as “theft.” official draft of the Code dealing with
“Bad Checks,” § 224.5, the ALI stated:
It is significant that in the very
“[I]f the check is over $500.00, the passer
language of Pennsylvania’s theft by
could be prosecuted for felonious theft by
deception statute, various forms of the
deception, under Sections 223.1(2) and
word “deceive” appear in five places;
223.3.” ALI, Model Penal Code, Reprint
“false impression,” in three places.
– Proposed Official Draft (May 4, 1962).
Supporting our conclusion that a
Moreover, in the Official Comment to the
Pennsylvania theft by deception offense
Pennsylvania bad checks statute, 18 Pa.
falls within the purview of Section
Cons. Stat. Ann § 4105, we are told: “A
1101(a)(43)(M)(i) of the INA are accepted
person who passes a bad check could be
definitions of the words “fraud” and
prosecuted for theft by deception under
“deceit” as used in that provision. Fraud
Section 3922.” As in 18 U.S.C. §
has been defined as “conduct which
1103(a)(43)(M)(i), the structure of
operates prejudicially on the rights of
Pennsylvania’s theft by deception statute
others, and is so intended; deception
includes a minimum amount of damages to
practiced to induce another to part with
qualify as an elevated offense.
property, or surrender some legal right,
and which accomplished the end desired.” The final reason, and not the least
James Ballentine, Law Dictionary with important, why we believe that Congress
Pronunciations 526 (1930). “In common intended to import the provisions of (M)(i)
parlance, the word ‘defraud’ means to into the “theft offenses” of (G) is that were
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we not to consider “theft offenses” as a contemporary’ definitions” found in the
subclass of “an offense that . . . involves C o d e , a s a d op te d ve rb a ti m by
fraud or deceit,” the application of (M)(i) Pennsylvania’s legislature, supply the
would be seldom invoked. Moreover, meaning that “best accords with the
were it not for the $10,000 loss limitation overall purposes of the statute.” 240 F.3d
of (M)(i), then in those jurisdictions like at 249 (internal quotation and citations
Pennsylvania that hold that a person who omitted). We determine that although an
passes a bad check of a modest amount offense under the Pennsylvania statute is a
could be convicted of theft by deception, “ the f t of f e nse ” so tha t Sectio n
we would be faced with the anomalous 1101(a)(43)(G) applies, because the state
situation that the minor offense would be statute is bottomed on “fraud or deceit,”
considered an aggravated felony. the offense mu st also m eet the
requirements of Section 1101(a)(43)(M )(i)
For all of these reasons, we
to qualify as an aggravated felony under
conclude that a conviction under
the INA. We accordingly conclude that
Pennsylvania’s theft by deception statute is
Nugent’s bad checks transaction for which
the type of offense that comes within 8
he was convicted under Pennsylvania’s
U.S.C. § 1101(a)(43)(M)(i), “an offense
theft by deception statute does not qualify
that . . . involves fraud or deceit,” albeit it
as an aggravated felony as defined by the
t o o c o m e s w i t h in 8 U .S .C . §
INA, because although the term of
1101(a )(43)(G), “a theft offense.”
imprisonment imposed on Nugent was one
Because the particular Pennsylvania statute
year or more, the victims’ loss did not
is designed entirely on all-embracing
exceed $10,000.
concepts of fraud or deceit – various forms
of the word “deceive” appear five times Accordingly, we will dismiss the
and “false impression” three times – it is petition for review at No. 02-0329 for lack
precisely the particular type of theft of jurisdiction. In the appeal at No. 04-
contemplated in the universal class of 1541, for reasons other than those stated
offenses set forth in the fraud or deceit by the district court as set forth above, we
Subsection 1101(a)(43)(M)(i). We will affirm the judgment of the district
therefore apply the axiom de omni et court without prejudice to the Appellant to
nullo: what is true of the universal (or apply to the Attorney General for
class) in § 1101(a)(43)(M)(i) is true for the cancellation of the removal order pursuant
p a r t ic u l a r ( o r s u b c l a s s ) i n § to 8 U.S.C. § 1229b.5
1101(a)(43)(G).
***** 5
Title 8 U.S.C. § 1229b(e) limits
In reaching our ultimate conclusion, the number of actions by the Attorney
therefore, we follow the teachings of General that cancel the removal or
Drakes and conclude that “more ‘generic, adjusts the status of aliens under section
1229b.
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Rendell, Circuit Judge - Concurring.
I am pleased to join in the majority’s
scholarly opinion. As amply demonstrated
by the majority’s historical exegesis, theft
by deception is a hybrid crime that is both
a theft offense, 8 U.S.C. § 1101(a)(43)(G),
and an offense involving fraud or deceit, 8
U.S.C. § 1101(a)(43)(M)(i). Therefore, in
order to qualify as an aggravated felony, it
must be shown that Nugent’s conviction
for theft by deception qualifies under the
statutory definitions for both theft offenses
and fraud/deceit offenses. I think this is
necessary to carry out Congress’s intention.
Nugent’s conviction was for an offense
that involved deceit resulting in a loss of
less than the $10,000 minimum set forth in
(M)(i). However, while I applaud Judge
Aldisert’s logical tour de force in devising
a way to reason to this conclusion under
the statute, I write separately to stress that
this logic should not compel that we
combine definitions within this section, as
a general rule. Rather, only where an
offense is a hybrid—as I submit theft by
deception is—and the aggravated felony
classifications contain two distinct, clearly
applicable tests, should we conclude that
both must be fulfilled in order for the
offense to qualify as an aggravated felony.
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