Eleventh Circuit Finds that MA Armed Robbery Conviction is Theft Offense

The Eleventh Circuit has determined that a Massachusetts robbery conviction is a theft related aggravated felony. The offense of armed robbery under entails a number of elements. The prosecution must prove that (1) the defendant was armed with a dangerous weapon (though it need not be used); (2) the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear (i.e., the defendant committed an assault on that person); and (3) the defendant took the money or the property of another with intent to steal it.

“These elements, under the categorical approach, match the generic definition of theft. Generic theft requires taking the property of another without consent and with intent to steal. The third element of armed robbery under § 17— the taking of property with the intent to steal—matches two of the requirements of a generic theft offense—i.e., the taking of property with the criminal intent to deprive the victim of the rights and benefits of ownership. And the second element of armed robbery under § 17—the taking of property by the use of force or by putting the victim in fear—matches the generic theft requirement that the taking be without the consent of the victim. Massachusetts law teaches that ‘[t]he essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property . . . which is so within his reach . . . that he could, if not overcome by violence or prevented by fear, retain his possession of it. This understanding satisfies the ‘without consent’ requirement of generic theft.”

The full text of Kemokai v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202112743.pdf

First Circuit Finds that Massachusetts Conviction for Defacing Firearms is not a Deportable Offense

The First Circuit has determined that a Massachusetts conviction for defacing firearms is not a deportable firearms offense because it criminalizes conduct involving antique firearms.

The full text of Portillo v. U.S. Department of Homeland Security can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1383P-01A.pdf

First Circuit Finds that MA Accessory after the Fact Conviction is Aggravated Felony

The First Circuit has determined that a Massachusetts conviction for accessory after the fact is an obstruction of justice-related aggravated felony. In so doing, the court determined that the definition of obstruction of justice unambiguously “does not require a nexus to a pending or ongoing investigation or judicial proceeding.” This widens a circuit split, with the Ninth and Third Circuits requiring a nexus to an ongoing investigation, and the Fourth Circuit and First Circuit agreeing with the Board of Immigration Appeals that an ongoing investigation is not required.

The First Circuit further determined that even assuming a nexus to an investigation is required, the Massachusetts statute meets that requirement. “To be convicted under that statute, the accessory must act with specific intent to enable a felon to ‘avoid or escape detention, arrest, trial, or punishment.’ Absent an investigation, there can be no prosecution and no detention, arrest, trial, or punishment to avoid or escape.”

The full text of Silva v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1593P-01A.pdf

First Circuit Finds that MA Drug Possession with Intent to Distribute Conviction is Aggravated Felony

The First Circuit has rejected a claim that a Massachusetts conviction fo possession with intent to distribute is not an aggravated felony because the mens rea for accomplice liability differs under state law from federal law. The court found no realistic probability that a defendant could satisfy the state mens rea standard but not the federal mens rea standard.

The full text of Soto-Vittini v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1372P-01A.pdf

First Circuit Remands for BIA to Reexamine if MA Arson Conviction is a CIMT

The First Circuit has remanded a case to the Board of Immigration Appeals (BIA) to reconsider its finding that a Massachusetts arson conviction is categorically a crime involving moral turpitude.  The court noted that the statute includes burning one's own property.  The court also noted that Massachusetts law does not require evil intent nor a corrupt mindset for an arson conviction.

The full text of Rosa Pena v. Sessions can be found here: 

http://media.ca1.uscourts.gov/pdf.opinions/17-1310P-01A.pdf

First Circuit Remands for Further Analysis as to Whether Massachusetts Conviction for Assault and Battery with a Dangerous Weapon is a CIMT

The First Circuit has remanded a case for further consideration as to whether a Massachusetts conviction for assault and battery with a dangerous weapon (ABDW) is a crime involving moral turpitude.  The court that ABDW can be committed both intentionally recklessly, and that the Massachusetts definition of "recklessness" departs from the definition employed by the Model Penal Code and a majority of states in that a defendant in Massachusetts need not have been subjectively aware of the risk posed by his conduct in order to have acted recklessly.  Even in light of the Board of Immigration Appeals' (Board) decision in Matter of Wu, which construed a California conviction for assault with a deadly weapon that could be committed through reckless conduct, the court was not convinced that the Board had adequately considered the definition of recklessness in Massachusetts.  As such, the court remanded the case for further consideration.

The full text of Coelho v. Sessions can be found here: 

http://media.ca1.uscourts.gov/pdf.opinions/16-2220P-01A.pdf

Ninth Circuit Determines that a Massachusetts Conviction for Armed Robbery does not Qualify as a Violent Felony

A conviction for armed robbery in Massachusetts requires the prosecution to prove two elements: (1) the defendant committed a robbery; and (2) the defendant was in possession of a weapon.  The robbery can be committed in one of two ways: (1) by force and violence (i.e., the actual force prong) or (2) by assault and putting in fear.  Under either prong, the degree of force is immaterial, so long as it is sufficient to obtain the property against the victim's will.  It is not necessary that the victim be placed in fear.  In addition, the defendant need not use the weapon during the commission of the robbery, nor need the victim be aware of the weapon.

Under these circumstances, the court determined that a conviction for armed robbery in Massachusetts does not meet the definition of a violent felony, which requires a statute include as an element the use, attempted use, or threatened use of physical force against the person of another.  Because the degree of force is immaterial, any force, however slight, will satisfy this prong so long as the victim is aware of it.  This does not meet the violent force requirement for a violent felony.  Moreover, since the statute does not require the use or threatened use of the weapon, the fact that a defendant must be armed does not transform the conviction into a violent felony.  Given the similarity in  the definition of a violent felony for sentencing purposes and a crime of violence for immigration purposes, this decision could be excellent persuasive authority for arguing that a Massachusetts conviction for armed robbery is not a crime of violence.

The full text of US v. Parnell can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/12/14-30208.pdf