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Court Adopts Generic Definition of "Theft Offense" Used By Other Circuits for Aggravated Felony Purposes

By Brad Bogan

Burke v. Mukasey, No. 06-60710 (5th Cir. Dec. 10, 2007) (per curiam) (Jolly, Higginbotham, Elrod)

The "aggravated felony" defintion in 8 U.S.C. § 1101(a)(43) includes a bunch of things (many of which are neither aggravated nor felonies), including a "theft offense." Other circuits have held that

the modern, generic, and broad definition of the entire phrase ?theft offense (including receipt of stolen property)? is a 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.

According to the opinion, the Fifth Circuit has used this definition in at least a couple of unpublished cases. Burke "formally adopt[s]" it. (There's no discussion of whether there's a circuit split on the question of whether generic theft actually requires an intent to permanently deprive the owner of the property, rather than simply a temporary deprivation. The latter is arguably a trespass, not theft.)

The court goes on to hold that "criminal possession of stolen property in the third degree," in violation of N.Y. Penal Law § 165.50, fits within the generic definition of a theft offense. The New York offense is defined thusly:

A person is guilty of criminal possession of stolen property in the third degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars.

One more you can add to your list.

Full post as published by Fifth Circuit Blog on December 11, 2007 (boomark / email).