The Ninth Circuit has determined that a California conviction for receipt of stolen property constitutes a “theft offense (including receipt of stolen property)” aggravated felony. The court acknowledge that California’s theft statutes are broader than the federal definition of theft. However, the court held that the word “including” could have been used by Congress to add a theft-related crime, receipt of stolen property, into the list of qualifying offenses even though it may not otherwise technically be a generic “theft offense.” The court further noted that the elements of generic theft, “[1] the taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent,” are distinct from the elements of receipt of stolen property,” [1] possession [2] of stolen property [3] knowing it was stolen,” As such, “the difference between the generic theft definition, which requires lack of consent, and that of California law, which does not, is irrelevant to a conviction for receipt of stolen property. The offender must know (or believe) the property was ‘stolen’; he does not need to know how it was stolen to be convicted.” In so holding, the Ninth Circuit deferred to the Board of Immigration Appeals’ precedent on the definition of a receipt of stolen property aggravated felony.

“BIA decisions define ‘receipt of stolen property’ as having the following elements: (1) receipt, possession, concealment, or retention of property, (2) knowledge or belief that the property has been stolen, and (3) intent to deprive the owner of his property. A mens rea equivalent to the presence of a reason to believe that the property had been stolen is insufficient. Intent to deprive can be inferred from knowledge that the property was stolen.” “The BIA’s reasonable interpretation of the elements of generic receipt of stolen property is a categorical match to the elements of that crime in California Penal Code section 496(a). To secure a conviction under section 496(a), the government must prove these elements: (1) stolen property; (2) knowledge that the property was stolen; and (3) possession, purchase, receipt, concealment, sale, or withholding of the stolen property. The mens rea element requires actual knowledge of or belief that the property is stolen.”

The full text of US v. Flores can be found here: