Rabii Baghdad v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-2094
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RABII BAGHDAD,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Case No. A047-505-299)
Immigration Judge: Alice Song Hartye
_______________
Argued May 24, 2022
Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges
(Filed: October 11, 2022)
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Craig R. Shagin [ARGUED]
THE SHAGIN LAW GROUP
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101
Counsel for Petitioner
Sara J. Bayram [ARGUED]
Kathryn M. McKinney
U.S. DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Juries are not mind readers. Usually, the only way they can
know a defendant’s intent is to infer it. As long as those infer-
ences are permissive, they do not dilute a crime’s mens rea
requirement.
A Moroccan man was convicted of shoplifting, making him
removable. He objects that Pennsylvania’s shoplifting statute
directs juries to infer intent to steal whenever someone con-
ceals merchandise. But in view of Pennsylvania’s standard jury
instructions and case law, that inference is only permissive. A
permissive inference does not water down the requisite intent
to steal and does not shift the burden of proof onto defendants.
2
Because his conviction made him removable, we will deny his
petition for review.
I. BACKGROUND
Rabii Baghdad, a Moroccan citizen, has lived in the United
States as a lawful permanent resident for two decades. In 2018,
he and two accomplices ran out of a Home Depot with three
drills (worth about $1000) and hawked them at a pawn shop.
He pleaded guilty to retail theft and faced nearly two years’
incarceration. 18 Pa. Cons. Stat. § 3929(a)(1). The government
then sought to deport him, arguing that his conviction was for
an aggravated felony and thus made him removable. An immi-
gration judge and the Board of Immigration Appeals agreed.
On this petition for review, Baghdad challenges that
aggravated-felony ruling. We have jurisdiction over this ques-
tion of law and review the Board’s ruling de novo. 8 U.S.C.
§ 1252(a)(2)(D); Quinteros v. Att’y Gen., 945 F.3d 772, 781–
82 (3d Cir. 2019).
II. BAGHDAD COMMITTED GENERIC THEFT,
AN AGGRAVATED FELONY
The Immigration and Nationality Act lets the government
deport an alien who is convicted of an “aggravated felony.” 8
U.S.C. § 1227(a)(2)(A)(iii). That term includes theft convic-
tions that result in prison sentences of at least one year.
§ 1101(a)(43)(G). Baghdad’s sentence was longer than that. So
the only remaining question is whether, under the Act, his
retail-theft conviction counts as “theft.”
But the Act does not define theft. So we apply the so-called
categorical approach. We must compare the Pennsylvania theft
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statute with how “the criminal codes of most States” and the
federal government generically use “the term ‘theft.’ ” Gonza-
les v. Duenas-Alvarez, 549 U.S. 183, 189–90 (2007) (quoting
Taylor v. United States, 495 U.S. 575, 598 (1990)). We do not
compare Baghdad’s actions to the generic definition of theft.
Rather, we look only at the elements of the state criminal stat-
ute that he violated. Pereida v. Wilkinson, 141 S. Ct. 754, 762
(2021). If that statute criminalizes acts that are not normally
considered theft, then his retail-theft conviction does not count
as a “theft” conviction under the Act. And so it would not be
an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184,
190–91 (2013).
The Supreme Court has described the three elements of ge-
neric theft: “[i] taking of property or an exercise of control over
property [ii] without consent [iii] with the criminal intent to de-
prive the owner of rights and benefits of ownership, even if
such deprivation is less than total or permanent.” Duenas-Al-
varez, 549 U.S. at 189 (internal quotation marks omitted and
bracketed numerals added); accord K.A. v. Att’y Gen., 997 F.3d
99, 105 (3d Cir. 2021). These three elements match those of
Pennsylvania’s retail-theft statute, to which Baghdad pleaded
guilty:
A person is guilty of a retail theft if he … [i] takes pos-
session of, carries away, transfers or causes to be carried
away or transferred, any merchandise displayed, held,
stored or offered for sale by any store or other retail
mercantile establishment [iii] with the intention of de-
priving the merchant of the possession, use or benefit of
such merchandise [ii] without paying the full retail
value thereof.
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18 Pa. Cons. Stat. § 3929(a)(1) (bracketed numerals added).
Both statutes require taking or exercising control over someone
else’s property. Both require doing so with the intent to deprive
the owner of the property. And since it requires taking “mer-
chandise … without paying the full retail value thereof,” the
Pennsylvania statute necessarily requires taking it “without
consent.” See § 3929(f) (defining “full retail value” as “[t]he
merchant’s stated or advertised price”).
In short, Baghdad was convicted of a crime that shares all
three elements with generic theft. And his sentence was for
more than one year. Thus, his crime was an aggravated felony,
making him removable.
III. PENNSYLVANIA’S STATUTORY PRESUMPTIONS
DO NOT CHANGE THE RESULT
So Baghdad focuses instead on a different part of Pennsyl-
vania’s statute, subsection (c). That subsection lists two inter-
locking presumptions about the defendant’s intent:
• Any person intentionally concealing unpurchased prop-
erty of any store … shall be prima facie presumed to
have so concealed such property with the intention of
depriving the merchant of [that property] without
paying …
• and the finding of such unpurchased property con-
cealed, upon the person or among the belongings of
such person … shall be prima facie evidence of inten-
tional concealment … .
18 Pa. Cons. Stat. § 3929(c).
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Baghdad reads this subsection as impermissibly shifting the
burden of proof onto defendants. Its language is mandatory, he
says, requiring juries to treat concealed property as “prima fa-
cie evidence” of intent to conceal. And a person who intention-
ally conceals is “prima facie presumed” to have the requisite
intent to deprive. So § 3929(c) requires juries to start with the
assumption that defendants who conceal merchandise do so to
steal it. At a minimum, he claims, it lets them convict based on
the mere fact of concealment, without evidence sufficient to
show an intent to deprive. On his reading, § 3929(c) puts the
burden on the defendant to offer evidence to disprove intent
and lowers § 3929(a)(1)’s mens rea requirement from an intent
to deprive the owner of property down to mere intent to con-
ceal. So the state statute supposedly reaches beyond the generic
crime of theft.
But mandatory presumptions are different from permissive
inferences. See Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140,
156–60 (1979); see also 1 Wayne R. LaFave, Substantive
Criminal Law § 1.8(f) (3d ed. 2021); 2 Robert P. Mosteller et
al., McCormick on Evidence § 342 (8th ed. 2022). Mandatory
presumptions (also known as legal presumptions) require a
jury or judge to reach certain conclusions absent rebuttal evi-
dence. Ulster Cnty., 442 U.S. at 157. In a criminal case, these
are unconstitutional because they shift the burden of proof onto
defendants. Juries must never presume that the defendant is
guilty or that an element of the offense is satisfied without find-
ing that the government has met its burden of proving that ele-
ment beyond a reasonable doubt.
By contrast, permissive inferences are allowed. Unlike
mandatory presumptions, permissive inferences (sometimes
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called permissive presumptions or standardized inferences) do
not shift the burden of proof or require any outcome. They are
just an “evidentiary device … [that] allows—but does not re-
quire—the trier of fact to infer” that an element of a crime is
met once basic facts have been proven beyond a reasonable
doubt. Id. (emphasis added). And “in the many cases where
there is no direct evidence of intent, that [inference] is exactly
how intent is established.” Rose v. Clark, 478 U.S. 570, 581
(1986). So a permissive inference of intent does not change the
burden of proof or the elements of a crime.
What kind of inference does the shoplifting law create? A
mandatory one, Baghdad says. Its “prima facie” presumptions
supposedly extend the elements of § 3929(a)(1) beyond generic
theft. But that is not clear from the face of the statute. Cf.
Cabeda v. Att’y Gen., 971 F.3d 165, 176 (3d Cir. 2020). And
if applied to sweep in innocent conduct, as Baghdad suggests,
it would make the statute unconstitutional. We may not base
that conclusion on “legal imagination,” but only on “a realistic
probability, not a theoretical possibility, that [Pennsylvania]
would apply its statute” in that way. Moncrieffe, 569 U.S. at
191; Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2018).
To decide whether Baghdad’s reading is realistic, we look
to how Pennsylvania’s jury instructions and courts interpret
and apply the provision. See James v. United States, 550 U.S.
192, 202–03 (2007); cf. Ulster Cnty., 442 U.S. at 160–62.
Though he reads § 3929(c) as creating mandatory presump-
tions, those sources all read it as permissive.
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Pennsylvania’s pattern jury instructions treat subsection (c)
as permissive. They leave the decision “to apply this permis-
sive presumption … to [the jury’s] discretion and common
sense based on all the evidence presented.” Pa. Suggested Std.
Crim. Jury Instrs. § 15.3929F. The jury is “free to credit or re-
ject the inference arising from concealment,” and the presump-
tion “does not shift the burden of proof.” Id.
Pennsylvania courts agree. They treat the presumption as
just “an evidentiary device” that permits but does not require
“the fact finder to infer” intent to steal. Commonwealth v.
McSween, 402 A.2d 528, 529 (Pa. Super. Ct. 1979); accord
Commonwealth v. Martin, 446 A.2d 965, 968 (Pa. Super. Ct.
1982). The jury still must find that “the inference [of intent to
steal] … follow[s] beyond a reasonable doubt from its factual
basis [of concealment].” Martin, 446 A.2d at 969; see also
Commonwealth v. Lee, 2015 WL 7729718, at *4–5 (Pa. Super.
Ct. Jan. 22, 2015) (treating “[t]he evidence of concealment” as
mere “support[ ]” for the jury’s finding of intent to steal).
Pennsylvania courts have ensured that the inference re-
mains just permissive. Making it mandatory, they understand,
would raise serious due-process concerns. See Martin, 446
A.2d at 968. When the prosecution relies on the presumptions
to justify a conviction, courts scrutinize the facts to discern
whether the defendant actually concealed merchandise and so
triggered the inference. And when those facts do not support
the inference and there is no other evidence of intent, Pennsyl-
vania’s appellate courts have overturned retail-theft convic-
tions. E.g., Commonwealth v. Monville, 452 A.2d 747, 749–50
(Pa. Super. Ct. 1982); Commonwealth v. Bonn, 368 A.2d 738,
740–41 (Pa. Super. Ct. 1976). It gives us pause that, in these
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cases, a prosecutor chose to proceed, the grand jury indicted,
the judge did not direct a verdict of acquittal, and the jury con-
victed without sufficient facts to support the requisite intent to
deprive the owner of the property. But Pennsylvania’s appel-
late courts have made clear, and Pennsylvania’s jury instruc-
tions explicitly require, that juries infer intent to steal only
when that inference can be made beyond a reasonable doubt.
Lee, 2015 WL 7729718, at *4–5; Martin, 446 A.2d at 968–69.
So § 3929(c) does not sweep in acts beyond the generic crime
of theft.
Still, Baghdad argues that if § 3929(c) were permissive,
there would have been no need to codify it. But the Supreme
Court has found that a codified presumption was permissive.
Ulster Cnty., 442 U.S. at 160–63. And state courts routinely
read statutory language like “shall be presumptive evidence of
… intent” or “shall constitute prima facie evidence of intent”
as just permissive inferences. E.g., State v. Caruso, 733 So. 2d
1169, 1171–72 (La. 1999); State v. Ferrari, 398 So. 2d 804,
806–07 (Fla. 1981).
In short, Pennsylvania’s reading of § 3929(c) accords with
how most states treat codified presumptions. That permissive
inference does not change our conclusion that the elements of
§ 3929(a)(1) categorically match the elements of generic theft.
We trust that Pennsylvania courts will keep treating § 3929(c)
as permissive and ensure that juries apply the inference in a
way that accords with due process.
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*****
The shoplifting statute under which Baghdad was convicted
shares all the elements of generic theft, an aggravated felony.
True, juries may infer that a defendant who concealed mer-
chandise intended to steal it. But that inference is permissive,
not mandatory. It depends on facts from which the jury could
infer intent to steal beyond a reasonable doubt. And it does not
shift the burden of proof. So Baghdad’s conviction makes him
removable, and we will deny his petition for review.
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