Today there is a short opinion discussing the meaning of “aggravated felony” in the context of a removal proceeding. And there is a summary order in a criminal case.
In Weiland v. Lynch, No. 14-3631-ag (Circuit Judges: Parker, Lohier, and Carney), the Circuit rejects the petitioner’s argument, in his fight against removal to Germany, that his conviction for possession of child pornography under the New York Penal Law (§263.11) did not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). His argument was that the New York offense was not an offense “described in” the analogous federal crime because the New York offense lacks an interstate commerce element that is present in the analogous federal child pornography statute. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony as an offense “described in” certain federal laws). The Circuit relied on this years’ Supreme Court decision in Torres v. Lynch, 136 S. Ct. 1619 (2016), which held that New York’s arson law qualified as an aggravated felony under the INA, even though it (obviously) lacked the jurisdictional element of the federal analogue of arson: i.e., the New York law did not require that the property damaged have been “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” Thus, in Weiland’s case, the Circuit holds that New York’s child pornography law qualifies as an offense described in its federal analogue (18 U.S.C. § 2252) even though it lacks the federal jurisdictional element.
“Expressio unius est exclusio alterius:”
The summary order issued today in United States v. Merz, No.15-2512-cr (Circuit Judges: Cabranes, Lohier, Carney) is a partial victory for the Vermont Federal Public Defenders Office. The Circuit vacates one of the four counts of conviction relying on the above principle of statutory construction.
The case arose out of the defendant’s administration of her mother’s estate. Ms. Merz and her brother — who were the mother’s only heirs — were appointed to administer the estate. And they allegedly spent the estate money before paying the mother’s creditors. One of the things the defendant allegedly did was to obtain some of the estate’s money by forging her brother’s name to “TD Bank withdrawal slips.”
The Circuit vacated her conviction on the count based on the forged withdrawal slips. This count — Count Four — charged a violation of 18 U.S.C. §513(a), for uttering a forged security with the intent to deceive another. The Circuit concluded that a bank withdrawal slip is not a security as defined in §513(c)(3)(A). It noted that subdivision (c)(3)(A) “names no fewer than 26 instruments that qualify as securities[,]” and bank withdrawal slips are “[n]oticeably absent from this list[.]” Summary Order at 4. Accordingly, the Circuit, guided by “the well-known canon of expressio unius est exclusio alterius — ‘ the express mention of one excludes the other[,]’” assumed that Congress intended to exclude bank withdrawal slips. Id. at 5 (citations omitted).
The Circuit did not, however, “foreclose the possibility that, in a given prosecution, the government could prove that a withdrawal slip is encompassed by one of Section 513(c)’s ‘catch-all’ categories,” in subdivisions (c)(3)(B)-(E). Id. at 6.