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Hybrid Aggravated Felonies

By Brad Bogan

Looking for a new angle on aggravated felony arguments? Try this one on for size: hybrid crimes.

As you're no doubt well aware, there's a whole slew of offenses that are "aggravated felonies." (And if you didn't know that, just pop on over to 8 U.S.C. § 1101(a)(43) and take yourself a gander.) What happens if a particular offense shares the characteristics of more than one of the offense categories that are listed as aggravated felonies? For example, a "theft offense" for which a person received a sentence of at least one year's imprisonment is an aggravated felony. So is "an offense that . . . involves fraud or deceit in which the loss . . . exceeds $10,000." So what about, say, theft accomplished by fraud? What if that offense contains all the elements of a theft offense and an offense involving fraud or deceit? Is it an aggravated felony?

That's the question the Third Circuit addressed a few years ago in Nugent v. Ashcroft. The court concluded that, under the categorical approach, the Pennsylvania offense of theft by deception was a "hybrid crime," in that it qualified as both a theft offense and an offense involving fraud or deceit. Nugent went on to hold that a hybrid crime must meet the requirements of both categories of offenses for it to be an aggravated felony. Thus, a conviction for theft by deception would only be an aggravated felony if the person was sentenced to at least one year's imprisonment (as required for a theft offense), and involved a loss in excess of $10,000 (as required for an offense involving fraud or deceit).

"Okay," you say, "will that play in Pampa, Plaquemine, or Pearl River? And are there other possible hybrid aggravated felonies?"

Let's take the last part first. One of the judges on the Nugent panel wrote separately

to stress that this logic should not compel that we combine definitions within this section, as a general rule. Rather, only where the 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.

So yes, maybe there are others.

As for the Fifth Circuit, it hasn't actually adopted the hybrid offense analysis. Although it did take it out for a spin in Martinez v. Mukasey, No. 06-60063 (5th Cir. Mar. 11, 2008) (King, Barksdale, Dennis). Martinez assumed, for the sake of argument, that the Nugent analysis might apply in the course of deciding whether a conviction for bank fraud under 18 U.S.C. § 1344 is an aggravated felony. The court ultimately concluded that bank fraud isn't a hybrid theft/fraud offense (because it doesn't require that property be taken without the owner's consent, an essential element of a "theft offense"), so it didn't decide whether both the length-of-imprisonment and loss requirements would kick in before the offense could be treated as an aggravated felony. But Martinez didn't say the hybrid offense theory could never apply, so it leaves the door open for this argument with regard to other crimes.

Full post as published by Fifth Circuit Blog on March 13, 2008 (boomark / email).