Wednesday, December 31, 2014

Export Statute, 18 U.S.C. § 554, Is Divisible; Modified Categorical Approach Applies to Statutes that Refer to Other Statutes and Regulations

Franco-Casasola was convicted under the export violation statute, 18 U.S.C. § 554(a), for buying, receiving, or concealing “merchandise, articles and object”—to wit: five semi-automatic pistols—knowing they were intended for export contrary to the Arms Export Control Act, 22 U.S.C. § 2778(b)(2), and the International Trafficking in Arms Regulations, 22 C.F.R. §§ 121.3, 123.1, and 127.1.  The question is whether § 554(a) is divisible such that a court can look to the elements of those arms export and trafficking statutes and regulations to determine whether Franco-Casosola’s conviction is an aggravated felony.  If § 554(a) is indivisible, the conviction would not be an aggravated felony.

A divided panel finds that § 554 is divisible and that, under the modified categorical approach, Franco-Casasola’s conviction is the aggravated felony of illicit trafficking in firearms.  Section 554, in part, makes it unlawful to fraudulently or knowingly buy, receive, conceal, or facilitate the transportation, concealment or sale of  “any merchandise, article, or object” from the United States “contrary to any law or regulation of the United States.” 

The panel substitutes this published decision for an unpublished one, attempting to explain Descamps in a manner that supports its finding that § 554 is divisible.  The majority essentially finds that the elements of Franco-Casasola’s conviction included unlawful exportation of defense articles, which the majority finds to be illicit trafficking in firearms.  The majority recognizes that it has “gone one step further than the Supreme Court has had to so far” in terms of the modified categorical approach but attests that it has “not strayed from the path it has marked.”

Judge Graves, in dissent, criticizes the majority’s analysis and casts its “one step” as a giant leap.  Simply put, Judge Graves finds that the phrase “any law or regulation of the United States” is not an “explicitly finite list” as required by Descamps to apply the modified categorical approach.  Further, since § 554(a) prohibits buying, selling, and other activities regarding “merchandise, article[s], or object[s],” the conviction cannot be narrowed to illicit trafficking in firearms.  He also disagrees with the majority’s conclusion that the elements of the “law or regulation of the United States” cited in the indictment would necessarily be elements of the § 554(a) offense. 

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