United States Court of Appeals
For the First Circuit
Nos. 12-1213
12-1216
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN L. VOISINE; WILLIAM E. ARMSTRONG III,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Virginia G. Villa, Assistant Federal Defender, Federal
Defender Office, for appellants.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
January 30, 2015
LYNCH, Chief Judge. The Supreme Court has directed us,
in light of United States v. Castleman, 134 S. Ct. 1405 (2014), to
consider again our decision in these two cases that both defendants
had indeed been convicted under state law of "misdemeanor crimes of
domestic violence," as defined in 18 U.S.C. § 921(a)(33)(A), even
though the state statutes allowed conviction based on a
recklessness mens rea. Armstrong v. United States, 134 S. Ct. 1759
(2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir.
2013); United States v. Voisine, 495 F. App'x 101 (1st Cir. 2013)
(per curiam). If so, then their motions to dismiss their federal
charges for possessing firearms after such convictions, in
violation of 18 U.S.C. § 922(g)(9), were properly denied.
Our answer is informed by congressional recognition in
§ 922(g)(9) of the special risks posed by firearm possession by
domestic abusers. "Domestic violence often escalates in severity
over time . . . and the presence of a firearm increases the
likelihood that it will escalate to homicide . . . ." Castleman,
134 S. Ct. at 1408. It is also informed by the congressional
choice in the federal sentencing scheme to honor each state's
choice as to how to define its own crimes, through statutory text
and judicial decision.
As we see it, this case turns on the unique nature of
§ 922(g)(9). That section is meant to ensure that individuals who
engage in the "seemingly minor act[s]" that actually constitute
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domestic violence, like squeezing and shoving, may not possess a
firearm. Castleman, 134 S. Ct. at 1412. This range of predicate
acts is broader than that found in other federal prohibitions
involving the use of physical force. Applying the teachings of
Castleman, we find that Maine's definition of reckless assault fits
within § 922(g)(9).
We affirm the denial of the motion to dismiss the
indictment and information here. That means the conditional guilty
pleas the defendants entered are valid and their sentences stand.
The question is close and we rule narrowly.
I.
A. Statutory Background
As the Supreme Court observed in Castleman, 18 U.S.C.
§ 922(g)(9) was enacted to close a loophole. "While felons had
long been barred from possessing guns, many perpetrators of
domestic violence are convicted only of misdemeanors." Castleman,
134 S. Ct. at 1409. No ban prevented those domestic abusers from
possessing firearms, yet there is a "sobering" connection between
domestic violence and homicide. Id. The "manifest purpose" of
§ 922(g)(9), the Lautenberg Amendment to the Gun Control Act of
1968, was to remedy the "potentially deadly combination" of
"[f]irearms and domestic strife." United States v. Hayes, 555 U.S.
415, 426-27 (2009).
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Under § 922(g)(9), it is against federal law for any
person "who has been convicted in any court of a misdemeanor crime
of domestic violence" to "possess in or affecting commerce[] any
firearm or ammunition." In turn, a "misdemeanor crime of domestic
violence" is defined in § 921(a)(33)(A) as an offense that (1) is
a misdemeanor under federal, state, or tribal law, and (2) "has, as
an element, the use or attempted use of physical force . . .
committed by a current or former spouse, parent, or guardian of the
victim" or by a person in a similar domestic relationship with the
victim.
The predicate offenses in these cases are convictions
under Maine assault statutes. Me. Rev. Stat. Ann. tit. 17-A,
§§ 207(1)(A), 207-A(1)(A). Under Maine law, a "person is guilty of
assault if[ t]he person intentionally, knowingly or recklessly
causes bodily injury or offensive physical contact to another
person." Id. § 207(1)(A). A violation of § 207 constitutes
misdemeanor domestic violence assault if the "victim is a family or
household member." Id. § 207-A(1)(A).
Maine law explains that "[a] person acts recklessly with
respect to a result of the person's conduct when the person
consciously disregards a risk that the person's conduct will cause
such a result." Id. § 35(3)(A). The statute goes on to give more
meat to the "conscious disregard" definition. It refers to
disregard of a risk, "when viewed in light of the nature and
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purpose of the person's conduct and the circumstances known to that
person," that "involve[s] a gross deviation from the standard of
conduct that a reasonable and prudent person would observe in the
same situation." Id. § 35(3)(C).
B. Facts
William E. Armstrong III was convicted in 2002 and 2008
of assaulting his wife in violation of Maine's misdemeanor assault
statutes, Me. Rev. Stat. Ann. tit. 17-A §§ 207(1)(A), 207-A(1)(A).
In May 2010, twenty-nine months after the last domestic assault
conviction, the Maine State Police searched the Armstrong residence
for drug paraphernalia and marijuana. They discovered six firearms
and ammunition. The police notified the federal Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF), which executed a search.
That search uncovered only ammunition, but Armstrong later
explained that he had arranged for a friend to remove the guns.
ATF agents observed the guns at the friend's home.
Armstrong was arrested and federally charged with being
a prohibited person in possession of a firearm, in violation of
§ 922(g)(9). The indictment listed Armstrong's 2008 domestic
violence assault conviction as the predicate offense.
Stephen L. Voisine was convicted in 2003 and 2005 of
assaulting a woman with whom he was in a domestic relationship, in
violation of Maine's assault statute. In 2009, acting on an
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anonymous tip, state and local law enforcement officials arrested
Voisine on the federal misdemeanor charge of killing a bald eagle
in violation of 16 U.S.C. § 668(a). When conducting a background
check, they discovered his 2003 misdemeanor simple assault. As
Voisine had turned a rifle over to the police during the
investigation, the criminal information charged him with violating
§ 922(g)(9) as well as § 668(a).
C. Procedural History
Both Armstrong and Voisine moved to dismiss, arguing that
their indictment and information did not charge a federal offense
and that § 922(g)(9) violated the Constitution. The district court
denied the motions, and both defendants entered guilty pleas
conditioned on the right to appeal the district court's decision.1
We consolidated Armstrong and Voisine's cases. In a
January 18, 2013 opinion, we affirmed the district court's
decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 F. App'x. at
102 (incorporating the reasoning from Armstrong as there were "no
pertinent factual differences" distinguishing the two cases). The
defendants had argued that a misdemeanor assault on the basis of
1
In February 2012, Armstrong was sentenced to three years of
probation and a fine and special assessment totaling $2,600. Also
in February 2012, Voisine was sentenced to a year and a day
imprisonment on the § 922(g)(9) charge with two years supervised
release, concurrent with nine months imprisonment and one year
supervised release on the § 668(a) charge, and $125 in special
assessments.
-6-
offensive physical contact, as opposed to one causing bodily
injury, is not a "use of physical force," and, concordantly, not a
"misdemeanor crime of domestic violence." Relying on United States
v. Booker, 644 F.3d 12 (1st Cir. 2011), and United States v. Nason,
269 F.3d 10 (1st Cir. 2001), we held that § 922(g)(9) did not
distinguish between violent and nonviolent convictions, and the
statute included the offensive physical contact portion of the
Maine statute within its definition of "physical force."
Armstrong, 706 F.3d at 6; Voisine, 495 F. App'x at 101-02.
Second, the defendants argued that § 922(g)(9) violated
the Second Amendment as applied to them. This argument was
foreclosed by Booker, which denied an identical argument framed as
a facial challenge. 644 F.3d at 22-26; see Armstrong, 706 F.3d at
7-8; Voisine, 495 F. App'x. at 101.
The defendants petitioned for certiorari. On March 31,
2014, the Supreme Court granted their petitions, vacated the
judgments, and remanded "for further consideration in light of
United States v. Castleman." Armstrong v. United States, 134 S.
Ct. 1759 (2014) (Mem.). In Castleman, the Court had addressed the
issue of whether the phrase "use of physical force" in
§ 921(a)(33)(A) required violence or could be satisfied by
offensive touching. That issue had been the source of a circuit
split. Castleman resolved the question in agreement with Nason,
holding that "Congress incorporated the common-law meaning of
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'force' -- namely, offensive touching -- in § 921(a)(33)(A)'s
definition of a 'misdemeanor crime of domestic violence.'"
Castleman, 134 S. Ct. at 1410. The Supreme Court left open
whether a conviction with the mens rea of recklessness could serve
as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court
stated, "the Courts of Appeals have almost uniformly held that
recklessness is not sufficient," and listed ten cases.2 Id. at
1414 n.8. It then added, "But see United States v. Booker, 644
F.3d 12, 19-20 (C.A.1 2011)." Id. The footnote did not say Booker
was wrong. It gave no further definition of recklessness. Nor did
it account for the differences in the statutory sections being
interpreted in the other cases cited.
This case comes to us following the Supreme Court's
remand.
II.
In construing § 922(g)(9)'s applicability to a given
case, we use the "categorical approach." Under that approach the
2
United States v. Palomino Garcia, 606 F.3d 1317, 1335–36
(11th Cir. 2010); Jimenez–Gonzalez v. Mukasey, 548 F.3d 557, 560
(7th Cir. 2008); United States v. Zuniga–Soto, 527 F.3d 1110, 1124
(10th Cir. 2008); United States v. Torres–Villalobos, 487 F.3d 607,
615–16 (8th Cir. 2007); United States v. Portela, 469 F.3d 496, 499
(6th Cir. 2006); Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1127–32
(9th Cir. 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468–69
(4th Cir. 2006); Oyebanji v. Gonzales, 418 F.3d 260, 263–65 (3d
Cir. 2005) (Alito, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d
Cir. 2003); United States v. Chapa–Garza, 243 F.3d 921, 926 (5th
Cir. 2001).
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elements of the predicate offense (here, the Maine assault statute)
must be identical to or categorically within the description of the
subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.
Ct. at 1413. Where, as here, the predicate statute is "divisible"
into crimes with alternative sets of elements, we may consider
whether the elements under which the defendant was convicted are
still within the subsequent provision, an inquiry known as the
"modified categorical approach." Id. at 1414. The government
concedes that the record here of the state proceedings is too
sparse to "discern under which prong of Maine's statute" the
defendants were convicted, and they urge us against "resort[ing] to
the modified categorical approach." For us to affirm, we must find
that the Maine statute -- including the reckless acts it prohibits
-- categorically fits within § 922(g)(9).
The defendants frame the issue as whether a reckless act
can constitute a "use of physical force" and rely on cases
interpreting statutes other than § 922(g)(9). We do not agree that
is the proper way to frame the question. That framing is
predicated on the notion that particular statutory language must be
interpreted identically in different sections across the U.S. Code.
To the contrary, context matters, as the Supreme Court demonstrated
in Castleman itself. 134 S. Ct. at 1410-12. The question is
whether Maine's definition of recklessness fits within
§ 921(a)(33)(A)'s phrase "use of physical force."
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Section 921(a)(33)(A) is a provision crafted in the unique context
of domestic violence, and it should be so interpreted. Castleman,
134 S. Ct. at 1410-12 & n.4; Booker, 644 F.3d at 18-21.
This reframing of the question clarifies our approach to
the two arguments raised by the defendants: that Castleman footnote
8 decides this case, and that Castleman's analysis of
§ 921(a)(33)(A) undermines our prior decisions. Castleman's
emphasis on context reinforces, rather than undermines, our earlier
decision.
A. Castleman Footnote 8
The defendants read too much into Castleman footnote 8,
which expressly does not resolve the question before us. Nor is
their argument made by reference to the cases cited for contrast in
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the footnote. Each of those cases3 construes a different statutory
definition, and all but one arose in a different context.
3
All but one of the ten cases cited in Castleman footnote 8
as deciding the § 922(g)(9) mens rea issue in fact considered other
statutes in other contexts and followed the reasoning of Leocal v.
Ashcroft, 543 U.S. 1, 13 (2004). Six cases analyzed 18 U.S.C.
§ 16. In Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir. 2005)
(Alito, J.), the Third Circuit read Leocal to apply to § 16(b),
which offered an alternative definition of "crime of violence" to
§ 16(a), and decided that reckless crimes cannot be crimes of
violence under that section. Three other cases from the footnote
did the same. See Garcia v. Gonzales, 455 F.3d 465, 467-69 (4th
Cir. 2006) (interpreting § 16(b), as referenced in an immigration
statute); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 559-62 (7th
Cir. 2008) (same); United States v. Torres-Villalobos, 487 F.3d
607, 614-17 (8th Cir. 2007) (same). Two more interpreted the same
provision, but without relying on Leocal, which had yet to be
decided. See Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir.
2003); United States v. Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir.
2001). All of these cases interpreted the term "crime of violence"
as part of an aggravated felony statute, and Castleman is clear
that the interpretive rules governing felonies do not apply to
misdemeanor crimes of domestic violence. 134 S. Ct. at 1411.
Three of the remaining four cases interpreted the term "use of
physical force" in the context of a Sentencing Guidelines provision
imposing an enhancement for defendants who were deported after
committing a felony "crime of violence," U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A). Each of those cases analyzed the
provision by analogizing to § 16 and applying Leocal. For example,
in United States v. Palomino Garcia, the Eleventh Circuit explained
that both § 16 and the Guidelines provision define the phrase
"crime of violence," and they are "almost identically worded." 606
F.3d 1317, 1335 (11th Cir. 2010). It then cited Leocal and the
other § 16 cases mentioned above to conclude that a "use of
physical force" cannot be reckless. Id. at 1335-36; see also
United States v. Portela, 469 F.3d 496, 498-99 (6th Cir. 2006);
United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008).
Even if § 16 were analogous to § 922(g)(9), that would not
resolve the matter. The Third Circuit has explained that some
reckless convictions can serve as predicates for § 16 offenses,
depending on the nature of the recklessness. Aguilar v. Att'y
Gen., 663 F.3d 692, 698-700 (3d Cir. 2011); cf. United States v.
Espinoza, 733 F.3d 568, 572-74 (5th Cir. 2013) (allowing a reckless
conviction to be a predicate for a violent felony under the Armed
Career Criminal Act).
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Footnote 8 begins by describing the issue as an open
question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13
(2004). In Leocal, the Supreme Court interpreted 18 U.S.C.
§ 16(a), the definition of the term "crime of violence." 543 U.S.
at 8-10. Such a crime requires "use of physical force," and Leocal
held that the term "use" suggests a mens rea higher than
negligence, but it withheld judgment on whether recklessness is
sufficient, Castleman, 134 S. Ct. at 1414 n.8; Booker, 644 F.3d at
19-20.
Considering context, section 16(a) is not analogous to
the section which concerns us, § 922(g)(9). Castleman itself
distinguished the term "use of force" in § 16(a), a provision for
undifferentiated violent crimes, from the term "use of physical
force" in § 922(g)(9)'s domestic violence provision. "Domestic
violence" is a "term of art" that "encompasses a range of force
broader than that which constitutes 'violence' simpliciter,"
including "acts that might not constitute 'violence' in a
nondomestic context." Castleman, 134 S. Ct. at 1411 & n.4. A
"crime of violence," by contrast, "suggests a category of violent,
active crimes." Id. at 1411 n.4 (quoting Leocal, 559 U.S. at 140)
(internal quotation mark omitted). As the Supreme Court explained,
a "'squeeze of the arm [that] causes a bruise'" is "hard to
describe as . . . 'violence'" within the meaning of § 16, but "easy
to describe as 'domestic violence'" within the meaning of
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§ 922(g)(9). Id. at 1412 (alterations in original) (quoting Flores
v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003)) (internal quotation
marks omitted).
Unsurprisingly, the drafting history of § 922(g)(9)
indicates that "Congress expressly rejected" the § 16(a)
definition, instead developing the term "misdemeanor crime of
violence" that was "'probably broader' than the definition" in
§ 16. Booker, 644 F.3d at 19 (citing a statement by Sen.
Lautenberg). And where Congress wanted to define a domestic
violence crime as a § 16 crime of violence occurring in the
domestic context, it has done so -- even in the same legislation
that contained the Lautenberg Amendment. See, e.g., 8 U.S.C.
§ 1227(a)(2)(E). "That it did not do so here suggests, if
anything, that it did not mean to." Castleman, 134 S. Ct. at 1412
n.6.
The only case cited in Castleman footnote 8 from the
domestic violence context is one in which Congress elected to
define the crime with reference to § 16. In Fernandez-Ruiz v.
Gonzales, the Ninth Circuit considered whether a reckless
misdemeanor could serve as a predicate "crime of domestic
violence." 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc) (citing
8 U.S.C. § 1227(a)(2)(E)(i)). Unlike § 922(g)(9), however, the
relevant statute in Fernandez-Ruiz defined "crime of domestic
violence" as a "crime of violence" (referencing § 16) committed
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against someone in a domestic relationship with the perpetrator.
Id. at 1124-25. The Ninth Circuit accordingly conducted a § 16
analysis, applying Leocal and cases from other circuits to reach
its conclusion. Id. at 1127-32. But even that result did not
follow so obviously from Leocal, as four judges dissented
emphasizing the differences between domestic violence and other
contexts. Id. at 1136 (Wardlaw, J., dissenting).
On remand of this case to us, the defendants' brief adds
to the cases in the footnote by citing two other § 922(g)(9) cases,
not mentioned in Castleman, which they say directly conflict with
Booker. We disagree. In United States v. White, 258 F.3d 374 (5th
Cir. 2001), the relevant predicate statute criminalized reckless
"conduct that places another in imminent danger of serious bodily
injury." Id. at 381. The court found that the statute did not
require a completed "use of physical force," since it was satisfied
by a risk of injury, and the statute extended beyond an "attempted
use of force" because attempt liability requires specific intent
rather than recklessness. Id. at 382-84. Rather than construing
the phrase "use of physical force," as Booker did, White relied on
principles of attempt liability to rule out reckless predicate
crimes.
In United States v. Howell, 531 F.3d 621 (8th Cir. 2008),
also added by the defendants, the predicate statute criminalized
reckless "conduct which creates a grave risk of death or serious
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physical injury to another." Id. at 624. The court found this
provision to be a "catch-all provision applicable to innumerable
factual situations," so a completed "use of physical force" is not
always or ordinarily present. Id.
Simply put, we are aware of no case -- including the
cases in Castleman footnote 8 -- in conflict with Booker's holding
that a reckless misdemeanor assault satisfies § 922(g)(9)'s
particular definition of a "misdemeanor crime of domestic
violence." Rather, § 922(g)(9)'s unique context, as described in
Castleman and supported by the legislative history, suggests that
§ 922(g)(9) should be interpreted more broadly than other
provisions, including § 16.
B. Structure of Castleman
The defendants present a second argument, which is that
Castleman's analytical approach to the term "use of physical force"
means the conduct of neither defendant here could meet that
standard. Castleman held that Congress intended to incorporate the
common law meaning of "force" in § 921(a)(33)(A), the definitional
provision for "misdemeanor crime of domestic violence." 134 S. Ct.
at 1410. "[A]bsent other indication, 'Congress intends to
incorporate the well-settled meaning of the common law terms it
uses.'" Id. (quoting Sekhar v. United States, 133 S. Ct. 2720,
2724 (2013)) (internal quotation mark omitted). As a result, the
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statutory term "physical force" is satisfied by "the degree of
force that supports a common-law battery conviction." Id. at 1413.
The parties agree that, under Castleman, the term "use of physical
force" also incorporates the common law mens rea for battery.
The parties approach this as a generalized question.
They disagree about whether reckless acts could or could not
constitute batteries at common law, and each side marshals support
for its view. See, e.g., Johnson v. United States, 559 U.S. 133,
139 (2010); Lynch v. Commonwealth, 109 S.E. 427, 428 (Va. 1921);
Commonwealth v. Hawkins, 32 N.E. 862, 863 (Mass. 1893); 2 Wayne R.
LaFave, Substantive Criminal Law § 16.2(c)(2); 3 William
Blackstone, Commentaries *120.
We decline the parties' invitation to define the mens rea
of a common law battery independent of the interpretation Maine
gives its own statute. Castleman explains that the term "use of
physical force" includes "the type of conduct that supports a
common-law battery conviction." 134 S. Ct. at 1411. Castleman
also explains that Congress incorporated "the common-law meaning of
'force.'" Id. at 1410. Castleman holds that the term "use of
physical force" includes both causing bodily injury and offensive
contact. Defendants concede that reckless causation of bodily
injury is a use of physical force. We see no reasoned argument
that offensive physical contact does not similarly entail the use
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of force simply because it is inflicted recklessly as opposed to intentionally.
We follow the statutory scheme in evaluating whether a
conviction under the Maine statute categorically counts as a
"misdemeanor crime of domestic violence."
1. The Scope of a "Misdemeanor Crime of Domestic Violence"
As Castleman explained, § 922(g)(9) is a statute with a
particular purpose: to ensure that domestic abusers convicted of
misdemeanors, in addition to felonies, are barred from possessing
firearms. 134 S. Ct. at 1408-12. "[B]ecause perpetrators of
domestic violence are 'routinely prosecuted under generally
applicable assault or battery laws,'" id. at 1411 (quoting Hayes,
555 U.S. at 427), we think Congress intended the firearm
prohibition to apply to those convicted under typical misdemeanor
assault or battery statutes. See id. at 1411, 1413. That
encompasses assault statutes for those states that allow conviction
with a mens rea of recklessness where recklessness is defined as
including a degree of intentionality. A victim of domestic
violence often encounters the perpetrator again, and a broader
reading of § 922(g)(9)'s mens rea requirement better ensures that
a perpetrator convicted of domestic assault is unable to use a gun
in a subsequent domestic assault. If Congress had wanted to impose
a higher mens rea, it could have done so explicitly, as it did in
the immediately preceding section of the bill that established
§ 922(g)(9). Booker, 644 F.3d at 18 & n.5.
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This view is confirmed by the legislative history of
§ 922(g)(9). Senator Lautenberg explained that § 922(g)(9) was a
broad prohibition covering "any person convicted of domestic
violence," without reference to a particular mental state. 142
Cong. Rec. S10377-01 (1996). Another senator made statements to
the same effect. See id. Additionally, Senator Lautenberg
described the law's application to scenarios without clear intent,
in which domestic arguments "get out of control," "the anger will
get physical," and one partner will commit assault "almost without
knowing what he is doing." 142 Cong. Rec. S11872-01 (Sept. 30,
1996). Such conduct may not be "knowing," but it nonetheless
constitutes a "use" of physical force -- whether it causes
offensive contact or bodily harm.
2. Maine's Definition of "Recklessness"
Whatever the common law meaning of battery as to
recklessness, Maine characterizes recklessness as a mens rea
involving a substantial amount of deliberateness and intent. The
statutory definition requires that a person "consciously
disregard[] a risk that the person's conduct will cause" the
result. Me. Rev. Stat. Ann. tit. 17-A § 35(3)(A) (emphasis added).
The disregard of the risk is "viewed in light of the nature and
purpose of the person's conduct and the circumstances known to the
person." Id. § 35(3)(C) (emphasis added). Further, it must
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"involve a gross deviation" from the standard of reasonable care.
Id.
Maine's definition of "recklessly," like its definition
of "knowingly," includes an element of intentionality and
specificity. To act "knowingly" in Maine, the person must be aware
that the result is "practically certain" to occur. Id. § 35(2)(a).
Maine's definitions of knowingly as contrasted with recklessly
differ primarily in their description of the degree of the person's
awareness of the likelihood that the result will occur. Cf. 2
LaFave, Substantive Criminal Law, § 5.4(f). To act knowingly and
recklessly, but not negligently, the person must be aware of the
risk: the recklessness definition requires reference to "the nature
and purpose of the person's conduct and the circumstances known to
the person." Maine's Supreme Judicial Court has made clear that
the recklessness inquiry focuses on the person's "subjective state
of mind." Stein v. Me. Criminal Justice Acad., 95 A.3d 612, 618
(Me. 2014) (quoting State v. Goodall, 407 A.2d 268, 280 (Me. 1979))
(internal quotation mark omitted); see State v. Hicks, 495 A.2d
765, 771 (Me. 1985) (comparing the subjective test for recklessness
with the objective test for negligence).
For example, the Maine Supreme Judicial Court has
affirmed a conviction for "act[ing] recklessly when [the defendant]
shot a powerful handgun into the woods in a residential area and in
the direction of his next-door neighbor's home, knowing where it
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was located." State v. Kline, 66 A.3d 581, 584 (Me. 2013) (citing
Me. Rev. Stat. Ann. tit. 17-A § 35). It also affirmed a conviction
for reckless conduct with the use of a dangerous weapon when the
defendant "drove his van alongside the victim's vehicle, remaining
there . . .[,] used his van to push the victim's vehicle into heavy
oncoming traffic, and made contact with that vehicle at least
once." State v. York, 899 A.2d 780, 783 (Me. 2006).
Maine's definition of recklessness includes a volitional
component. In this, it is like other states. See Fernandez-Ruiz,
466 F.3d at 1141 (Wardlaw, J., dissenting) (collecting cases).
Notwithstanding Leocal, some judges found that even § 16
encompassed reckless predicate convictions. In Fernandez-Ruiz,
four dissenting judges of the Ninth Circuit observed that Arizona's
definition of recklessness, like Maine's, requires that the person
"be aware of a substantial and unjustifiable risk and affirmatively
choose to act notwithstanding that risk." Id. Recklessness
includes an "volitional, active decision, which necessarily
involves 'a higher degree of intent than negligent or merely
accidental conduct.'" Id. (quoting Leocal, 543 U.S. at 9); accord
Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 449-50 (4th Cir. 2005)
(Niemeyer, J., dissenting) ("Unlike a person who accidentally
injures another person, a person who acts recklessly in bringing
about harm to another is aware of the nature of his conduct and
thus can be said to be 'actively employ[ing]' the physical force
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that results in injury 'against another.'" (alteration in original)
(quoting Leocal, 543 U.S. at 9)).
3. Categorical Comparison
We conclude that reckless assault in Maine is "use of
physical force" within the meaning of a "misdemeanor crime of
domestic violence." As noted above, § 922(g)(9) is meant to
embrace those seemingly minor predicate acts, occurring sometimes
in moments of passion, where the perpetrator consciously
disregarded a risk in light of known circumstances. This often
constitutes domestic violence. Reckless assaults in Maine fit that
congressional intent for § 922(g)(9), including the paradigm of a
domestic assault as described by Senator Lautenberg. As the
dissenting judges on the Ninth Circuit, concerned with a different
federal statute, explained:
"Domestic abusers may be drunk or otherwise
incapacitated when they commit their crimes,
and they may plea bargain down from a felony to
a misdemeanor or from a statute that requires
a mens rea of intentionality to one that can be
satisfied by recklessness. But this does not
alter the nature of domestic violence as a
crime involving the use of force against
someone in a domestic
relationship . . . ."
Fernandez-Ruiz, 466 F.3d at 1139 (Wardlaw, J., dissenting).
Defendants' position assumes that a reckless act cannot
be an act of domestic violence because it lacks volition. But that
is not true. For example, suppose Maine convicts a husband for
throwing a knife toward his wife, intending to instill fear rather
-21-
than to cause physical injury, but actually striking her. The mens
rea of the conviction would likely be recklessness: in light of the
circumstances known to the husband, he consciously disregarded the
risk of harm. Such a reckless assault can "subject one intimate
partner to the other's control," Castleman, 134 S. Ct. at 1411, and
is the type of conduct included in § 922(g)(9) even though the
husband did not intend to cause bodily injury or offensive contact.
Similarly, if Maine prosecutes and convicts a parent for assault
for waving a lit cigarette near a child in anger, the cigarette
touching and burning the child, that conviction in context may well
be an act of domestic violence.
The defendants focus their analysis on assaults involving
reckless causation of offensive physical contact, rather than
bodily injury. We do not see why that distinction is material to
the analysis here. The issue is whether § 922(g)(9) encompasses
reckless uses of force, regardless of whether the use of force
results in bodily injury or an offensive physical contact. If the
husband's knife grazes his wife or harms her grievously, it is an
assault all the same.4
4
The dissent wrongly relies on our decision in United States
v. Bayes, 210 F.3d 64 (1st Cir. 2000), for the proposition the
federal assault statute requires deliberate action. Id. at 69
(citing 18 U.S.C. § 113(a)(5)). Bayes says that "it is sufficient
to show the defendant deliberately touched another in a patently
offensive manner without justification or excuse." Id. In
deciding that the statue did not require specific intent, Bayes did
not pass on whether recklessness would satisfy the statute.
Further, the dissent relies on the rule of lenity, an argument not
-22-
As a practical matter, it is hard to identify a case of
reckless assault in the domestic context that Maine would prosecute
but that Congress did not intend to serve as a § 922(g)(9)
predicate. See James v. United States, 550 U.S. 192, 208 (2007)
(explaining that the categorical approach focuses on "the ordinary
case," not "every conceivable factual offense covered by a
statute"); United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014)
("[I]n assessing whether the elements of the candidate proposed as
a predicate crime are overbroad, we need not consider fanciful,
hypothetical scenarios."). Maine will not prosecute all "[m]inor
uses of force." Castleman, 134 S. Ct. at 1412; see Flores v.
Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003) (Evans, J., concurring)
("[P]eople don't get charged criminally for expending a newton of
force against victims. [The defendant] actually beat his
wife . . . ."). But some grabbing and slapping
"accumulat[es] . . . over time," "subject[ing] one intimate partner
to the other's control." Castleman, 134 S. Ct. at 1412. When it
eventually "draws the attention of authorities and leads to a
successful prosecution for a misdemeanor offense, it does not
offend common sense or the English language to characterize the
resulting conviction as a 'misdemeanor crime of domestic
violence.'" Id. After all, not all assaults will serve as
made by the defendants.
-23-
§ 922(g)(9) predicates, but only those occurring in the domestic
context.
To be clear, we do not decide that, on the spectrum from
negligence to intentional acts, recklessness is always closer to
the latter. Cf. Fernandez-Ruiz, 466 F.3d at 1141-42 (Wardlaw, J.,
dissenting) ("Recklessness is a distinct mens rea, which lies
closer to intentionality than to negligence."). We also do not
decide that recklessness in the abstract is always enough to
satisfy § 922(g)(9).5 We decide only that the Maine definition is
sufficiently volitional that it falls within the definition of "use
of physical force" applied in § 922(g)(9). See Booker, 644 F.3d at
18.
C. Our Recent Decision in Carter Does Not Help the Defendants
In United States v. Carter, 752 F.3d 8 (1st Cir. 2014),
we encountered similar facts to this case. We remanded for the
district court to determine whether the defendant had indeed been
convicted of a reckless assault. The opinion noted that Castleman
"casts doubt" upon Booker, but it explicitly did "not decide" the
5
As recognized at 2 LaFave, Substantive Criminal Law, § 5.4
n.6, "usage of the term [recklessness] has not been consistent."
See, e.g., United States v. Meeks, 664 F.3d 1067, 1070-71 & n.2
(6th Cir. 2012) (explaining that "recklessness" in Kentucky is a
lower standard than "being aware of and consciously disregarding a
substantial and unjustifiable risk"). As the dissent observes,
while the Model Penal Code definition is similar to Maine's (though
not identical), Puerto Rico's definition--until the new statute is
in effect--has language quite different from the Maine statute.
-24-
question before this court. Id. at 18 & n.11. Now, squarely
presented with the issue and having reviewed Castleman, we resolve
the question left open by Carter.
III.
The defendants make three constitutional arguments, none
of which are successful.
First, the defendants renew their prior argument that
§ 922(g)(9) violates the Second Amendment as applied to them. They
explicitly raise the argument only to preserve it, and for good
reason: it is "foreclosed by binding precedent in this circuit."
Carter, 752 F.3d at 13; see Armstrong, 706 F.3d at 7-8; Booker, 644
F.3d at 22-26.
Second, the defendants offer a "gloss" on their earlier
argument. They suggest that Castleman held that the link between
non-violent misdemeanors and domestic violence involving firearms
is extremely tenuous, and they argue that such a tenuous link
cannot support the law's constitutionality. To the contrary,
Castleman explained that the link between non-violent misdemeanors
and domestic violence involving firearms is "sobering," and hardly
tenuous. 134 S. Ct. at 1409.
The defendants also raise an argument outside the scope
of the Supreme Court's remand. They claim that § 922(g)(9)
violates the Fifth Amendment, Sixth Amendment, and Ex Post Facto
-25-
Clause because the determination that the predicate crime involves
domestic violence is made at the time of the § 922(g)(9)
conviction, rather than at the time of the predicate conviction.
We have discretion to reexamine issues beyond the scope
of the Supreme Court's specific remand order when "necessary to
avoid extreme injustice." United States v. Burnette, 423 F.3d 22,
25 n.6 (1st Cir. 2005) (quoting United States v. Estevez, 419 F.3d
77, 82 (1st Cir. 2005)) (internal quotation mark omitted). But
"[t]here is no injustice in refusing to reexamine a carefully
considered decision based on the same arguments that we have
already rejected." Id. at 25 n.6. The Supreme Court has already
rejected arguments very similar to the defendants' in United
States v. Hayes, 555 U.S. 415, 421 (2009).
The defendants argue that Hayes was implicitly overruled
by a recent Supreme Court decision, Descamps v. United States, 133
S. Ct. 2276 (2013). Hayes held that the determination that an
earlier conviction involved a domestic relationship is an element
of § 922(g)(9), not the predicate conviction. 555 U.S. at 418.
Descamps limited the extent to which courts can look at the facts
underlying the predicate conviction to determine whether they fit
the subsequent conviction, under the modified categorical approach.
133 S. Ct. at 2281-82. The defendants argue that, as in Descamps,
the subsequent court may not evaluate the predicate conviction to
-26-
determine a fact about it -- here, whether it involved a domestic
relationship.
We reject this argument. Whether the predicate
conviction involved a domestic relationship is not a fact about the
predicate conviction discerned through application of the modified
categorical approach, in violation of Descamps. It is an element
proved anew in the § 922(g)(9) proceeding.
IV.
The question before us is a narrow one. We are asked to
decide whether a conviction for reckless assault against a person
in a domestic relationship in Maine constitutes a federal
"misdemeanor crime of domestic violence." Congress in passing the
Lautenberg Amendment recognized that guns and domestic violence are
a lethal combination, and singled out firearm possession by those
convicted of domestic violence offenses from firearm possession in
other contexts. Castleman recognizes as much.
For the reasons stated above, we affirm the judgments of
guilt.
So ordered.
-Dissenting Opinion Follows-
-27-
TORRUELLA, Circuit Judge, Dissenting. The majority fails
to adequately justify its departure from the Supreme Court's
direction and the analogous decisions of our sister circuits.
Indeed, the Supreme Court's message is clear. In United States v.
Castleman, 134 S. Ct. 1405 (2014), the Court noted that we are the
only outlying circuit on this question: our prior precedent is
inconsistent with every other circuit court to consider the issue.
See id. at 1414 n.8 (contrasting our past position with that of the
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
and Eleventh Circuit Courts of Appeals, which have "uniformly held
that recklessness is not sufficient" to "constitute a 'use' of
force"). The Court then remanded the instant cases for
reconsideration in light of Castleman, see United States v.
Armstrong, 134 S. Ct. 1759 (2014), implicitly suggesting that we
bring our holdings in line with the other federal circuit courts of
appeals. We are obligated to heed the Supreme Court's direction.
See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)
("[F]ederal appellate courts are bound by the Supreme Court's
considered dicta almost as firmly as by the Court's outright
holdings, particularly when, as here, a dictum is of recent vintage
and not enfeebled by any subsequent statement."). Not only are the
Supreme Court's instructions mandatory, but the legal reasoning and
analysis in the cases cited by the Court are also correct.
-28-
On remand, this case requires us to answer, at the very
least, one question of statutory interpretation: whether a Maine
conviction for the "reckless" causation of an "offensive physical
contact" necessarily involves the "use or attempted use of physical
force" as required to establish a "misdemeanor crime of domestic
violence" for purposes of 18 U.S.C. § 922(g)(9). The majority
fails to persuasively explain why, in all cases, the merely
reckless causation of offensive physical contact categorically must
involve the "use or attempted use of physical force," 18 U.S.C.
§ 921(a)(33)(A), particularly in light of the host of cases
strongly suggesting otherwise. As explained herein, these cases
hold that the "use" of physical force requires the active or
intentional employment of force, which cannot be satisfied by
merely reckless conduct.
Confronting this question, we are not acting upon an
empty stage; rather, we must start with the backdrop painted by the
Supreme Court in Castleman, which is the basis for the instant
remand. Indeed, the Castleman Court questioned whether the "merely
reckless causation" of even bodily injury -- much less offensive
physical contact -- could constitute the "use" of force, noting
that "the Courts of Appeals have almost uniformly held that
recklessness is not sufficient," because the "use" of force
requires a greater degree of intentionality. Castleman, 134 S. Ct.
at 1414 & n.8.
-29-
Although the majority opinion correctly observes that
those circuit court cases involved different statutes, the
operative language is nearly identical and the majority fails to
persuasively explain why the result should be different here. All
of the analogous cases involved the "use" of "force," and most
interpreted 18 U.S.C. § 16. See id. at 1414 n.8 (listing cases).
Several of these cases6 analyzed § 16(a), which defines a "crime of
violence" as "an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another." 18 U.S.C. § 16(a). That language is
materially indistinguishable, as relevant here, from the Lautenberg
Amendment's definition of a "misdemeanor crime of domestic
violence" as an offense that "has, as an element, the use or
attempted use of physical force." 18 U.S.C. § 922(g)(9); id.
§ 921(a)(33)(A). "[W]hen Congress uses the same language in two
statutes having similar purposes, . . . it is appropriate to
presume that Congress intended that text to have the same meaning
6
See United States v. Torres–Villalobos, 487 F.3d 607, 616–17
(8th Cir. 2007) (holding that Minnesota second-degree manslaughter
can be committed recklessly without the intentional use of force,
and therefore is not a crime of violence under § 16(a));
Fernández-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir. 2006)
(holding that reckless conduct cannot constitute the "use" of force
for purposes of § 16(a)); García v. Gonzales, 455 F.3d 465, 468
(4th Cir. 2006) (reasoning that the "use" of "physical force"
requires the intentional employment of physical force, and
therefore holding that a New York second-degree reckless assault
conviction is "beyond the scope" of § 16(a)).
-30-
in both statutes." Smith v. City of Jackson, Miss., 544 U.S. 228,
233 (2005).7
The majority opinion concedes that this case presents a
"close" question. Ante, at 3. I agree. Given the Supreme Court
and circuit court cases interpreting similar statutes and holding
that merely reckless conduct is insufficient to constitute the
"use" of physical force, I believe that the rule of lenity also
forecloses the defendants' convictions here. Indeed, it is a
"familiar principle" that "'ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity'" towards
the accused. Skilling v. United States, 561 U.S. 358, 410 (2010)
7
Moreover, the cases involving § 16(b) provide even stronger
support for the defendants' position here, as § 16(b) involves
language more susceptible than that of § 16(a) or the Lautenberg
Amendment to a reading that encompasses reckless conduct. Compare
18 U.S.C. § 16(b) (defining a "crime of violence" as a felony that
"involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense"), with Model Penal Code § 2.02(2)(c) ("A person acts
recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct.").
Yet most courts nonetheless have rejected arguments that § 16(b)
can be satisfied by a predicate offense with a mens rea of
recklessness. See, e.g., Jobson v. Ashcroft, 326 F.3d 367, 373 (2d
Cir. 2003) ("[T]he verb 'use' in section 16(b), particularly when
modified by the phrase 'in the course of committing the offense,'
suggests that section 16(b) 'contemplates only intentional conduct
and refers only to those offenses in which there is a substantial
likelihood that the perpetrator will intentionally employ physical
force.'" (internal quotation marks omitted) (quoting Dalton v.
Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001))).
-31-
(quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).8 The
rule of lenity bars courts from giving the text of a criminal
statute "a meaning that is different from its ordinary, accepted
meaning, and that disfavors the defendant." Burrage v. United
States, 134 S. Ct. 881, 891 (2014). In my view, by permitting a
conviction based on the reckless causation of offensive physical
contact, the government and the majority seek to give the "use
. . . of physical force" a meaning different from that phrase's
ordinary meaning. The ordinary meaning of the "use" of physical
force requires the intentional employment of force, and not the
merely accidental, negligent, or reckless use of such force. Cf.
Leocal v. Ashcroft, 543 U.S. 1, 4 (2004) (giving an ordinary and
natural reading to the phrase "'use . . . of physical force against
the person or property of another,'" and holding that this phrase
requires "a higher degree of intent than negligent or merely
accidental conduct" (quoting 18 U.S.C. § 16(a))); id. (explaining
that "'use' requires active employment," and reasoning that "a
person would 'use . . . physical force against' another when
8
In addition to its acknowledgment that this is a "close"
case, the majority's reliance on legislative history also suggests
that the statutory text is ambiguous. Cf. Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 184 n.29 (1978) ("When confronted with a
statute which is plain and unambiguous on its face, we ordinarily
do not look to legislative history as a guide to its meaning.").
Furthermore, the contrasting results reached by the First Circuit
and our sister circuits on the interpretation of the phrase "use
. . . of physical force" provide additional evidence of that
statutory text's ambiguity.
-32-
pushing him . . . [but not] by stumbling and falling into him");
García v. Gonzales, 455 F.3d 465, 468 (4th Cir. 2006) (holding that
"the use . . . of physical force" requires the intentional
employment of physical force). Moreover, given that the Supreme
Court has stated that (1) "the merely reckless causation of bodily
injury . . . may not be a 'use' of force," and (2) "the Courts of
Appeals have almost uniformly held that recklessness is not
sufficient" to constitute the "use" of force, Castleman, 134 S. Ct.
at 1414 & n.8, I cannot see how the proper application of the rule
of lenity permits affirmance of the defendants' convictions.
I express no opinion here on whether the "use" of
physical force is satisfied by either the reckless causation of
bodily injury or the intentional or knowing causation of offensive
physical contact. Rather, I confine my inquiry to one subsumed
offense under the Maine assault statutes: the reckless causation of
offensive physical contact. Although the majority states that they
fail to see why the distinction between "bodily injury" and
"offensive physical contact" "is material to the analysis here,"
ante, at 22, I explain herein why that distinction matters. See
infra Section II(B)(1). Namely, even if recklessness were a
sufficient mens rea for purposes of bodily injury, a conviction
-33-
under the Lautenberg Amendment nonetheless cannot rest on the
reckless causation of offensive physical conduct in Maine.9
The Supreme Court has stated that, under the Lautenberg
Amendment, Congress classified as a "'misdemeanor crime of domestic
violence'" "the type of conduct that supports a common-law battery
conviction." Castleman, 134 S. Ct. at 1411. The Supreme Court has
further explained that "the common-law crime of battery . . .
consisted of the intentional application of unlawful force against
the person of another." Johnson v. United States, 559 U.S. 133,
139 (2010) (emphasis added); see also United States v. Bayes, 210
F.3d 64, 69 (1st Cir. 2000) ("[T]he common law provided that an
assault committed by way of a battery did not require an intent to
cause or to threaten an injury as long as the defendant touched
9
All of the examples cited by the majority -- squeezing,
shoving, a squeeze of the arm that causes a bruise, shooting a
powerful handgun in the direction of a neighbor's home, driving a
van to make contact with another vehicle and to push the victim's
vehicle into heavy oncoming traffic, a husband throwing a knife
towards his wife intending to instill fear but actually striking
her, and waving a lit cigarette near a child in anger so that the
cigarette touches and burns the child, ante, at 3, 12, 19-20, 21-22
-- involve intentional conduct that is reckless as to the result,
which in nearly all of those examples is bodily injury. By
contrast, the Maine statutes at issue here permits conviction for
far less culpable conduct: merely reckless conduct that is also
reckless as to the result of offensive physical contact. In so
doing, the majority conflates mens rea as to the result with mens
rea as to the underlying conduct that causes the result. It is
this distinction that explains why common-law battery permits
conviction for (1) intentional conduct that is reckless as to the
result of bodily injury and (2) intentional conduct that is
intentional as to the result of bodily injury or offensive
touching, but does not permit conviction for (3) reckless conduct
that is merely reckless as to the result of an offensive touching.
-34-
another in a deliberately offensive manner without a valid reason
to do so.") (emphasis added); State v. Rembert, 658 A.2d 656, 658
(Me. 1995) (stating that "[u]npermitted and intentional contacts
. . . [are] actionable as an offensive contact") (emphasis added);
cf. Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(c)(2) n.32
(2d ed.) ("[W]ith the tort of battery an intention to injure or
touch offensively is needed"); Black's Law Dictionary 182 (10th ed.
2014) (defining tortious battery as a "nonconsensual, intentional,
and offensive touching of another without lawful justification")
(emphasis added). To trigger a violation of the Lautenberg
Amendment, therefore, the relevant precedent counsels that the
offensive touch must be caused intentionally and not merely
recklessly. By contrast, the Maine statutes at issue here permit
conviction for recklessly causing an offensive touch.10 Therefore,
a conviction under either of the Maine assault statutes implicated
here does not categorically establish a violation of the Lautenberg
Amendment. Given that the record does not permit a conclusion that
the defendants' Maine convictions rested on a subsumed offense that
10
To recklessly cause an offensive physical contact in Maine,
a person must consciously disregard a risk that his or her conduct
will cause physical contact -- something more than a mere touching
-- that a reasonable person would find to be offensive under the
circumstances. See Me. Rev. Stat. tit. 17-A, § 35(3) (defining
recklessness); id. § 207(1)(A) (simple assault); id. § 207-A(1)(A)
(domestic violence assault). Therefore, to sustain a Maine
conviction for this subsumed offense, the defendant need not intend
that physical contact occur nor intend that the contact be
considered offensive.
-35-
does constitute a violation of the Lautenberg Amendment, the
federal convictions at issue here cannot stand.11
11
Despite the foregoing, the majority opinion offhandedly
rejects the relevance of the mens rea for battery under the common
law. See ante, at 16 ("The parties agree that, under Castleman,
the term 'use of physical force' also incorporates the common law
mens rea for battery. . . . They disagree about whether reckless
acts could or could not constitute batteries at common law, and
each side marshals support for its view. We decline the parties'
invitation to define the mens rea of a common law battery . . . .")
(citations omitted). At the same time, the majority cites
Castleman for the proposition that the "use" of physical force
includes offensive contact, due to the common-law meaning of
"force" for purposes of battery. Id. The majority opinion thus
relies on the actus reus for battery under the common law, but
simultaneously rejects the relevance of the accompanying mens rea
for common-law battery. See id. In so doing, the majority fails
to sufficiently justify its decision to "decline" the parties'
"invitation" to consider the import of the mens rea of common-law
battery to the question at bar. Such a decision requires
justification, particularly because the Supreme Court in Castleman
also extended an "invitation" for us to consider this issue when it
explained that Congress intended to classify as a "'misdemeanor
crime of domestic violence' the type of conduct that supports a
common-law battery conviction." See Castleman, 134 S. Ct. at 1411.
Nothing in Castleman suggests that the phrase "type of conduct"
refers only to the actus reus for battery and not also the
accompanying mens rea. Indeed, the contrary conclusion makes far
more sense. If Congress meant to incorporate the common-law crime
of battery, it most likely meant to incorporate both the actus reus
and its accompanying mens rea. See, e.g., United States v. Zhen
Zhou Wu, 711 F.3d 1, 18 (1st Cir. 2013) ("'In the criminal law,
both a culpable mens rea and a criminal actus reus are generally
required for an offense to occur.'" (quoting United States v.
Apfelbaum, 445 U.S. 115, 131 (1980))); United States v.
Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006) (stating that
"most crimes . . . require[] both mens rea and actus reus"); cf.
United States v. Freed, 401 U.S. 601, 607-08 (1971) (explaining
that when "Congress borrows terms of art" from the common law, "it
presumably knows and adopts the cluster of ideas that were attached
to each borrowed word" (internal quotation marks and citation
omitted)).
-36-
After giving careful consideration to the issues
involved, engaging in the necessary statutory interpretation and
legal analysis, and applying the relevant precedent, I heed the
Supreme Court's direction and follow the lead of our sister
circuits in disagreeing with the majority's conclusion. Therefore,
I respectfully dissent.
I. Legal Background
A. The Statutory Framework
1. The Lautenberg Amendment
The defendants here were charged with violating the
Lautenberg Amendment to the Gun Control Act of 1968, now codified
at 18 U.S.C. § 922(g)(9) (the "Lautenberg Amendment" or
"§ 922(g)(9)"). Under the Lautenberg Amendment, it is unlawful for
any person "who has been convicted in any court of a misdemeanor
crime of domestic violence, to . . . possess in or affecting
commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(9). For
these purposes, a "misdemeanor crime of domestic violence" is
further defined in 18 U.S.C. § 921(a)(33)(A) as an offense that:
(I) is a misdemeanor under Federal,
State, or Tribal law; and
(ii) has, as an element, the use or
attempted use of physical force, or the
threatened use of a deadly weapon, committed
by a current or former spouse, parent, or
guardian of the victim, by a person with whom
the victim shares a child in common, by a
person who is cohabiting with or has cohabited
with the victim as a spouse, parent, or
-37-
guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim[.]
Id. § 921(a)(33)(A) (emphases added).
2. The Relevant Maine Assault Statutes
The defendants argue that the relevant Maine assault
statutes do not "ha[ve], as an element, the use or attempted use of
physical force." See id. Under Maine law, a defendant is guilty
of "domestic violence assault" if (1) the defendant violates the
Maine simple assault provision, and (2) "the victim is a family or
household member." See Me. Rev. Stat. tit. 17-A, § 207-A(1)(A).
Turning to the simple assault provision in the Maine
Criminal Code, a person is guilty of "assault" if "[t]he person
intentionally, knowingly or recklessly causes bodily injury or
offensive physical contact to another person." See § 207(1)(A).
Thus, there are six different, divisible permutations of the Maine
simple assault statute, each of which can form the basis for a
section 207 assault conviction. United States v. Carter, 752 F.3d
8, 17-18 (1st Cir. 2014) ("The Maine general-purpose assault
statute is divisible into six permutations of subsumed offenses,
based on the combination of one element from each of two
categories: (1) mens rea ('intentionally, knowingly or
recklessly'), and (2) actus reus ('causes bodily injury or
offensive physical contact to another person')." (quoting
§ 207(1)(A))). These six subsumed offenses are illustrated in the
following chart:
-38-
The six variants of the Maine simple assault statute:
Actus Reus
Maine simple
assault statute,
Me. Rev. Stat. tit. . . . causes bodily . . . causes
17-A, § 207(1)(A) injury. offensive physical
contact.
Intentionally 1. Intentionally 4. Intentionally
. . . causes bodily injury. causes offensive
physical contact
Mens Knowingly 2. Knowingly causes 5. Knowingly
Rea . . . bodily injury. causes offensive
physical contact.
Recklessly 3. Recklessly causes 6. Recklessly
. . . bodily injury. causes offensive
physical contact.
In Maine state court, Armstrong was convicted of Maine
domestic-violence assault under section 207-A, and Voisine was
convicted of Maine simple assault under section 207.12 These prior
convictions served as the predicate offenses for the defendants'
§ 922(g)(9) charges, which are the subject of the instant appeal.
A simple assault statute lacking a domestic-relationship element
(such as Voisine's prior offense of conviction in Maine) can
nonetheless serve as the predicate offense for a misdemeanor crime
of domestic violence, so long as the domestic-relationship element
12
Violation of either provision -- the general assault offense
or "domestic violence assault" -- constitutes a "Class D" crime
under the Maine Criminal Code, which is equivalent to a
misdemeanor. See State v. Allen, 377 A.2d 472, 475 n.4 (Me. 1977)
("We therefore deem Class D and Class E crimes to be the Criminal
Code equivalents of misdemeanors.").
-39-
is proved in the subsequent federal prosecution. See United States
v. Hayes, 555 U.S. 415, 418 (2009) (holding "that the domestic
relationship, although it must be established beyond a reasonable
doubt in a § 922(g)(9) firearms possession prosecution, need not be
a defining element of the predicate offense").
B. The Categorical and Modified Categorical Approaches
Given the foregoing statutory framework, we must analyze
whether the elements of the Maine assault statute necessarily
fulfill the requirements of the Lautenberg Amendment. In cases
such as this -- where a court must decide whether a prior
conviction for an earlier offense (like assault) satisfies one of
the elements of the offense in a subsequent prosecution (here, for
example, whether the earlier offense "has, as an element, the use
. . . of physical force," 18 U.S.C. § 921(a)(33)(A)) -- the court
determines whether it is appropriate to apply the categorical
approach or the modified categorical approach.
1. The Categorical Approach
In Taylor v. United States, 495 U.S. 575, 600 (1990), the
Supreme Court described the categorical approach, under which
courts "look[] only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those
convictions." See also United States v. Dávila–Félix, 667 F.3d 47,
56 (1st Cir. 2011) (same). If the "statutory definition" of the
prior offense necessarily meets the requirements of the subsequent
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offense at issue, then the court can determine that a conviction
for the prior offense categorically constitutes a valid predicate
offense for purposes of the later prosecution. See Castleman, 134
S. Ct. at 1414.
2. The Modified Categorical Approach
Some statutes, like the Maine assault statutes at issue
here, are "divisible": they "set[] out one or more elements of the
offense in the alternative." See Descamps v. United States, 133 S.
Ct. 2276, 2281 (2013). For these statutes, some permutations or
variants of the subsumed offenses may categorically meet the
requirements of the subsequent offense, whereas others may not.
Accordingly, for these divisible statutes, courts may apply the
"modified categorical approach" to determine which variant or
subsumed offense formed the basis for the prior conviction, and
thus whether that prior conviction can serve as a valid predicate
offense for the subsequent prosecution. See Castleman, 134 S. Ct.
at 1414. Under this approach, a court may "consult[ ] the trial
record -- including charging documents, plea agreements,
transcripts of plea colloquies, findings of fact and conclusions of
law from a bench trial, and jury instructions and verdict forms" --
in order to "determine which statutory phrase was the basis for the
conviction" under such a divisible statute. Johnson, 559 U.S. at
144. These documents are often called "Shepard documents," after
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Shepard v. United States, 544 U.S. 13 (2005) (plurality opinion).
See, e.g., Carter, 752 F.3d at 19-20 & 19 n.12.
3. Application
Under established precedent not called into doubt by
Castleman and not challenged here, certain subsumed offenses under
the Maine assault statutes (such as the intentional or knowing
causation of bodily injury) are unequivocally valid predicate
offenses for the Lautenberg Amendment. See Castleman, 134 S. Ct.
at 1415 ("It is impossible to cause bodily injury without applying
force in the common-law sense," and "the knowing or intentional
application of force is a 'use' of force."). If the Shepard
documents showed that the defendants' prior assault convictions
were for those particular subsumed offenses, for example, then we
would be able to apply the modified categorical approach and affirm
the defendants' Lautenberg Amendment convictions without reaching
the recklessness issue. See Carter, 752 F.3d at 18 n.11 (reasoning
that under the modified categorical approach, if the Shepard
documents showed that the defendant's prior Maine conviction was
for intentional or knowing conduct, then the court could affirm his
conviction under the Lautenberg Amendment). The parties agree,
however, that the Shepard documents for Armstrong's and Voisine's
underlying Maine convictions are inconclusive and do not reveal
which variants of the Maine assault statutes served as the bases
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for their convictions. Therefore, the modified categorical
approach cannot resolve this appeal.
Rather, we must apply the categorical approach to
determine whether the statutory definitions of the Maine assault
provisions necessarily include the "use or attempted use of
physical force." See 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9); see
also Castleman, 134 S. Ct. at 1414. Under the categorical
approach, if any one of the six variants of the Maine assault
statute does not necessarily constitute the "use . . . of physical
force," then the defendants' convictions must be reversed. Put
differently, to affirm the defendants' convictions under the
categorical approach, all of the subsumed offenses under the Maine
statute must have the "use or attempted use of physical force" as
an element. 18 U.S.C. §§ 921(a)(33)(A); see also United States v.
Holloway, 630 F.3d 252, 257 (1st Cir. 2011) (stating that under the
categorical approach, "the [prior] conviction may only serve as a
predicate offense if each of the possible offenses of conviction
would qualify" as individually satisfying the offense in the
subsequent prosecution (citing Shepard, 544 U.S. at 26)). The
defendants focus their argument on the sixth and least severe
subsumed offense: the "reckless" causation of "offensive physical
contact." Therefore, we must apply the governing precedent to
decide whether this statutory definition necessarily involves the
"use . . . of physical force."
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C. The Supreme Court's Decisions in Leocal and Johnson
The Supreme Court's opinions in Leocal v. Ashcroft, 543
U.S. 1 (2004), and Johnson v. United States, 559 U.S. 133 (2010),
provided foundational reasoning for subsequent cases relevant to
this appeal. In both of these cases, the Supreme Court engaged in
statutory interpretation to determine whether the offenses
underlying prior state convictions had, as an element, the "use" of
physical force as required for purposes of a subsequent federal
proceeding.
1. Leocal
In Leocal, the Supreme Court examined a similar question
to that facing us today, regarding parallel language in the
statutory definition of a "crime of violence" under 18 U.S.C.
§ 16(a). Under that statute, a "crime of violence" includes "an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another." 18 U.S.C. § 16(a) (emphasis added). The petitioner in
Leocal had previously been convicted in Florida state court for
driving under the influence of alcohol (DUI) and causing serious
bodily injury. Leocal, 543 U.S. at 3. The Supreme Court held that
the petitioner's DUI conviction was not a crime of violence under
18 U.S.C. § 16. Id. at 4. In so holding, the Court explained that
"'use' requires active employment," reasoning that "a person would
'use . . . physical force against' another when pushing him . . .
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[but not] by stumbling and falling into him." Id. Giving the
operative phrase in 18 U.S.C. § 16(a) its ordinary and natural
reading, in context, the Leocal Court held that the "'use . . . of
physical force against the person or property of another'" requires
"a higher degree of intent than negligent or merely accidental
conduct." Id. (quoting 18 U.S.C. § 16(a)). The Court also
interpreted parallel language in 18 U.S.C. § 16(b), giving that
language "an identical construction" and "requiring a higher mens
rea than the merely accidental or negligent conduct involved in a
DUI offense." Id. at 11.
Additionally, the Court considered the fact that it was
"ultimately . . . determining the meaning of the term 'crime of
violence.'" Id. It reasoned that "[t]he ordinary meaning of this
term, combined with § 16's emphasis on the use of physical force
against another person . . . suggests a category of violent, active
crimes that cannot be said naturally to include DUI offenses." Id.
Therefore, the Court concluded that "[i]nterpreting § 16 to
encompass accidental or negligent conduct would blur the
distinction between the 'violent' crimes Congress sought to
distinguish for heightened punishment and other crimes." Id.
Importantly for the instant case, the Leocal Court held only that
negligent and accidental conduct did not constitute the "use" of
force and thus a crime of violence under 18 U.S.C. § 16; the Court
did not reach the question whether reckless conduct would be
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sufficient. Id. at 13 ("This case does not present us with the
question whether a state or federal offense that requires proof of
the reckless use of force against a person or property of another
qualifies as a crime of violence under 18 U.S.C. § 16.").
2. Johnson
In Johnson, the Supreme Court considered a related
question: "whether the Florida felony offense of battery by
'[a]ctually and intentionally touch[ing]' another person, Fla.
Stat. § 784.03(1)(a), (2) (2003), 'has as an element the use . . .
of physical force against the person of another,' 18 U.S.C.
§ 924(e)(2)(B)(I), and thus constitutes a 'violent felony' under
the Armed Career Criminal Act, § 924(e)(1)." Johnson, 559 U.S. at
135 (alterations in original). The Court observed that "the
element of 'actually and intentionally touching' under Florida's
battery law is satisfied by any intentional physical contact, 'no
matter how slight.'" Id. at 138 (quoting State v. Hearns, 961 So.
2d 211, 218 (Fla. 2007)). Even "[t]he most 'nominal contact,' such
as a 'ta[p] . . . on the shoulder without consent,'" is sufficient
to constitute a violation of the Florida law. Id. (second and
third alterations in original) (quoting Hearns, 961 So. 2d at 219).
In determining the definition of "physical force" under
the Armed Career Criminal Act ("ACCA"), the Court sought to give
the phrase "its ordinary meaning" while keeping in mind the context
of its inquiry: defining the statutory category of violent
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felonies. Id. at 138-40. In that context, the Court thought "it
clear that in the context of a statutory definition of 'violent
felony,' the phrase 'physical force' means violent force -- that
is, force capable of causing physical pain or injury to another
person." Id. at 140. The Johnson Court explicitly limited its
holding to the ACCA, asserting that its decision would not extend
to the Lautenberg Amendment. See id. at 143-44 ("We have
interpreted the phrase 'physical force' only in the context of a
statutory definition of 'violent felony.' We do not decide that
the phrase has the same meaning in the context of defining a
misdemeanor crime of domestic violence. The issue is not before
us, so we do not decide it.").
D. Pre-Castleman First Circuit Precedent: Nason, Booker,
Armstrong I, and Voisine I
Prior to the Supreme Court's decision in Castleman, the
defendants' arguments were squarely foreclosed by First Circuit
precedent; it is this precedent that the Supreme Court has
instructed us to reconsider.
In United States v. Nason, 269 F.3d 10 (1st Cir. 2001),
which also considered the interplay between the Maine simple
assault statute and the Lautenberg Amendment, we held that the
actus reus of "offensive physical contact" necessarily involved the
"use or attempted use of physical force," id. at 11-12, 21.
Synthesizing the definitions of "physical force" from Black's Law
Dictionary and other dictionaries, we determined that "physical
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force may be characterized as power, violence, or pressure directed
against another person's body." Id. at 16. We thus held that
§ 922(g)(9) does not require that the predicate offense involve
"bodily injury," but rather can be satisfied by "any physical
force" -- including offensive physical contact -- "regardless of
whether that force resulted in bodily injury or risk of harm." Id.
at 16-18. Therefore, Nason established that either actus reus
prong of the Maine assault statute -- bodily injury or offensive
physical contact -- could serve as a valid predicate conviction for
purposes of § 922(g)(9). Id. at 21 ("[B]oth [actus reus] variants
of assault regulated under Maine's general-purpose assault statute
necessarily involve the use of physical force.").
Whereas Nason focused on the actus reus variants of the
Maine assault statute for purposes of the Lautenberg Amendment, we
later focused on the mens rea variants in United States v. Booker,
644 F.3d 12 (1st Cir. 2011). In Booker, we rejected the argument
that only an intentional offense could constitute a misdemeanor
crime of domestic violence under § 922(g)(9). Id. at 13-14. The
appellants in Booker sought to rely on the Supreme Court's
decisions in Leocal and Johnson, analogizing to the definition of
"crime of violence" under 18 U.S.C. § 16 and the definition of
"violent felony" under the ACCA, 18 U.S.C. § 924(e). Id. at 18-19.
We held that those other statutes were not sufficiently analogous
to dictate the result in Booker, reasoning that, for example,
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"[w]hereas the ACCA seeks to protect society at large from a
diffuse risk of injury or fatality at the hands of armed,
recidivist felons, § 922(g)(9) addresses an acute risk to an
identifiable class of victims -- those in a relationship with a
perpetrator of domestic violence." Id. at 21. We thus turned to
the "plain, unambiguous language of § 922(g)(9)," finding that "the
statutory definition of 'misdemeanor crime of domestic violence'
does not prescribe an intentional mens rea." Id. (quoting 18
U.S.C. § 922(g)(9)). Therefore, we held "that an offense with a
mens rea of recklessness may qualify as a 'misdemeanor crime of
domestic violence' under § 922(g)(9)." Id. (quoting 18 U.S.C.
§ 922(g)(9)).
On the initial appeal in this case, United States v.
Armstrong, 706 F.3d 1, 5 (1st Cir. 2013) ("Armstrong I"), vacated,
134 S. Ct. 1759 (2014), we considered Armstrong's arguments that
the Lautenberg Amendment's prohibition on gun ownership does not
apply to non-violent offensive physical contact. We found the
defendant's argument on this issue to be squarely foreclosed by our
prior decisions in Nason and Booker. Id. at 2 (citing Booker, 644
F.3d 12; Nason, 269 F.3d 10). On that basis, we rejected
Armstrong's statutory interpretation arguments and affirmed the
decision of the district court. Id. at 2-6, 8. That same day, we
issued an opinion in United States v. Voisine, 495 F. App'x 101
(1st Cir. 2013) (per curiam) ("Voisine I"), vacated sub nom.
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Armstrong v. United States, 134 S. Ct. 1759 (2014). In a per
curiam opinion, we stated that Voisine had raised "the exact same
arguments" as those raised in Armstrong I. Id. Because there were
"no pertinent factual differences distinguishing" Voisine I from
Armstrong I, we incorporated Armstrong I's reasoning into the
Voisine I per curiam opinion and affirmed the district court's
decision. Id. at 102. Both defendants appealed our decisions in
to the Supreme Court.
E. Castleman and Its Aftermath
1. The Supreme Court's Castleman Opinion
Approximately one year later, while the petitions for
writs of certiorari were pending in Armstrong I and Voisine I, the
Supreme Court issued its opinion in Castleman, 134 S. Ct. 1405.
The defendant in Castleman had pleaded guilty to a Tennessee
offense for "intentionally or knowingly caus[ing] bodily injury to"
the mother of his child. Id. at 1408-09. After federal
authorities subsequently learned that he was selling firearms on
the black market, Castleman was indicted on two counts of violating
the Lautenberg Amendment. Id. at 1409. He argued that the
Tennessee statute did not have the use, or attempted use, of
physical force as an element of the offense. Id. (citing 18 U.S.C.
§ 921(a)(33)(A)(ii)). The Sixth Circuit affirmed the dismissal of
Castleman's convictions on the § 922(g)(9) counts, holding that the
Tennessee conviction was not a valid predicate offense because
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Castleman might have been convicted for "'caus[ing] a slight,
nonserious physical injury with conduct that cannot be described as
violent.'" See id. at 1409–10 (quoting United States v. Castleman,
695 F.3d 582, 590 (6th Cir. 2012)). The Supreme Court reversed,
reasoning that Castleman had pleaded guilty to intentionally or
knowingly causing bodily injury, which "necessarily involves the
use of physical force." Castleman, 134 S. Ct. at 1414.
The Court explained that "physical force" for purposes of
§ 922(g)(9) encompasses "the common-law meaning of 'force' --
namely, offensive touching." Id. at 1410. The Court explained
that "'[d]omestic violence' is not merely a type of 'violence'; it
is a term of art encompassing acts that one might not characterize
as 'violent' in a nondomestic context" -- acts like slapping,
shoving, pushing, grabbing, hair-pulling, and spitting. Id. at
1411 & n.5.
The Castleman Court further explained that there are two
main categories of assault or battery laws generally used to
prosecute domestic abusers: "those that prohibit both offensive
touching and the causation of bodily injury, and those that
prohibit only the latter." Id. at 1413. Interpreting "physical
force" to exclude a mere "offensive touching" would have rendered
the Lautenberg Amendment "ineffectual in at least 10 States -- home
to nearly thirty percent of the Nation's population -- at the time
of its enactment." Id. (footnote omitted). Therefore, the Court
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held that the "physical force" requirement is satisfied "by the
degree of force that supports a common-law battery conviction" --
including an offensive touching. Id.
The Court considered whether it could apply the
"categorical approach" articulated in Taylor, 495 U.S. 575, to
resolve the issue, asking if the elements of the Tennessee statute
necessarily met the requirements of § 922(g)(9). Castleman, 134 S.
Ct. at 1414. If the answer were in the affirmative, then the Court
could conclude that "a domestic assault conviction in Tennessee
categorically constitutes a 'misdemeanor crime of domestic
violence.'" Id.
Expressing skepticism regarding such a categorical
conclusion, the Court stated that "[i]t does not appear that every
type of assault defined by [the Tennessee statute] necessarily
involves 'the use or attempted use of physical force, or the
threatened use of a deadly weapon.'" Id. at 1413–14 (quoting 18
U.S.C. § 921(a)(33)(A)). For example, the Court reasoned that
under the Tennessee statute, "[a] threat . . . may not necessarily
involve a deadly weapon, and the merely reckless causation of
bodily injury . . . may not be a 'use' of force." Id. at 1414.
The Court noted that in Leocal it had "reserved the question
whether a reckless application of force could constitute a 'use' of
force," id. at 1414 n.8 (citing Leocal, 543 U.S. 1), but emphasized
that "the Courts of Appeals have almost uniformly held that
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recklessness is not sufficient," id. (contrasting our holding in
Booker, 644 F.3d 12, with the decisions of ten of our sister courts
of appeals: the Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth, and Eleventh Circuits). The Court declined
to hold that a conviction under the Tennessee statute categorically
constitutes a misdemeanor crime of domestic violence for purposes
of § 922(g)(9). See id. at 1414.
On the heels of its Castleman opinion, the Supreme Court
vacated our prior decisions in Voisine I and Armstrong I, and it
remanded those two cases for reconsideration in light of its
decision in Castleman. See Armstrong I, 134 S. Ct. 1759 ("Judgment
vacated, and case remanded to the United States Court of Appeals
for the First Circuit for further consideration in light of United
States v. Castleman, [134 S. Ct. 1405] (2014)."). There is little
disagreement that this remand order calls for us to consider the
impact of Castleman's Footnote Eight on our prior precedent,
particularly Booker and Nason. In that footnote, the Supreme Court
contrasted our Booker holding with the decisions of ten of our
sister circuits, noting that "the Courts of Appeals have almost
uniformly held that recklessness is not sufficient" to "constitute
a 'use' of force." Id. at 1414 n.8.
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2. The First Circuit's Carter Opinion
In the wake of Castleman and the Supreme Court's remand
of the instant cases, we issued an opinion in United States v.
Carter, 752 F.3d 8 (1st Cir. 2014). Among other arguments, the
defendant in that case, Wayne Carter, raised similar issues to
those examined in Armstrong I. Id. at 9-10. Carter had been
convicted in 1997 of a misdemeanor assault in Maine, after his
live-in girlfriend at the time, Annie Eagan, told police officers
that Carter spit in her face and shoved her right shoulder. Id. at
10. Eagan reported that she was not hurt, that she did not want
Carter arrested or charged with an offense, and that she only
wanted him removed from the house. Id. at 10-11. Nonetheless, the
Maine state prosecutor charged Carter under Maine's general-purpose
assault statute, to which Carter pleaded guilty and was sentenced
to time served: thirty days in jail. Id. at 11.
Approximately thirteen years later, in 2010, Carter
obtained a loan by pawning a rifle that he had inherited from his
dead father. Id. at 10. A records check and further investigation
in connection with his pawning activities revealed Carter's prior
misdemeanor assault conviction. Id. The pawn shop's records
showed that Carter had pawned and redeemed three separate rifles
multiple times between 2007 and 2010. Id. at 11. All of the
rifles were inherited from his father. Id. at 11 n.2. "The
firearms were kept in a locked cabinet at his mother's house, and
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Carter only physically possessed the rifles in connection with
pawning them." Id. Based on the foregoing, Carter was charged in
a one-count indictment for violating the Lautenberg Amendment's
prohibition on gun possession by those convicted of a misdemeanor
crime of domestic violence. Id. at 11. After entering a
conditional guilty plea, reserving his right to appeal, Carter was
sentenced by the district court to be imprisoned for twelve months
and one day -- a downward variance from the bottom of the
Sentencing Guidelines range: eighteen months. Id. at 9, 12. He
then appealed, arguing, among other things, that the commission of
simple assault by recklessly causing offensive physical contact
does not constitute the "use . . . of physical force" as required
to establish a misdemeanor crime of domestic violence under the
Lautenberg Amendment. Id. at 10.
On appeal, we noted that although this argument was
previously foreclosed by our holding in Booker, "the Supreme
Court's recent decision in Castleman casts doubt upon this
holding." Id. at 18 (citing Castleman, 134 S. Ct. at 1414 & n.8).
In support of that assertion, we cited the Supreme Court's
statements that "'the merely reckless causation of bodily injury
under [the Tennessee assault statute] may not be a "use" of
force,'" id. (alteration in original) (quoting Castleman, 134 S.
Ct. at 1414), and that "'the Courts of Appeals have almost
uniformly held that recklessness is not sufficient' to 'constitute
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a "use" of force,'" id. (quoting Castleman, 134 S. Ct. at 1414
n.8). Although Castleman had not directly overruled our prior
decision in Booker, we noted that these statements from the Supreme
Court provided a "'sound reason' for thinking that the Booker panel
might well 'change its collective mind' in light of Castleman."
Id. at 18 n.11 (quoting United States v. Rodríguez–Pacheco, 475
F.3d 434, 442 (1st Cir. 2007)).
Despite the Supreme Court's statements in Castleman
calling into question our prior precedent on this question, it was
unnecessary in Carter to answer the recklessness issue, because
Carter potentially could have been resolved via the modified
categorical approach: the underlying Shepard documents might have
"ultimately show[n] that Carter's conviction was under one of the
other two mens-rea prongs of the statute -- 'intentionally' or
'knowingly.'" Id. We thus observed that under Castleman, "the
validity of Carter's § 922(g)(9) conviction may depend on which
mens-rea prong of the Maine general-purpose assault statute served
as the basis for his guilty plea and conviction." Id. at 18.
Examining the record for Shepard documents that could determine
which variant of the Maine assault statute was the basis for
Carter's conviction, we found the record incomplete and
undeveloped: it was unclear whether such documents existed. See
id. at 20-21 ("It is not clear . . . whether there are any other
'approved' Shepard documents or comparable judicial records
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available with respect to Carter's prior assault conviction. . . .
[T]he record is insufficiently developed to determine which variant
of the Maine general-purpose assault statute served as the basis
for Carter's conviction."). Accordingly, we "remand[ed] the case
to the district court to allow the parties to further develop the
record on this issue," consistent with the Supreme Court's opinion
in Castleman. Id. at 21. In so doing, we reserved the question
presented by the Supreme Court's vacatur of Armstrong I and Voisine
I in light of Castleman, allowing us to squarely address that issue
in the instant remand.
3. District Courts' Application of Castleman and Carter
To date, three different district court judges in the
First Circuit have applied the reasoning of Castleman's Footnote
Eight regarding these issues; all three opinions concluded that a
recklessly committed Maine assault does not necessarily involve the
"use" of physical force and thus is not categorically a misdemeanor
crime of domestic violence. United States v. Sales, No.
2:13-CR-137-NT, 2014 WL 3405658 (D. Me. July 11, 2014); United
States v. Carter, No. 2:10–cr–00155–GZS, 2014 WL 3345045 (D. Me.
July 8, 2014); United States v. Hines, No. 1:12–cr–00204–JAW, 2014
WL 1875164 (D. Me. May 9, 2014). Each of these three cases is
examined below, in the order that they were decided.
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a. Hines
The first district court case to apply the decisions in
Castleman and Carter to these issues was Hines, 2014 WL 1875164.
The defendant in Hines had pleaded guilty in Maine state court to
violating the domestic violence assault statute; the Shepard
documents revealed no further details regarding the conduct
underlying this offense. Id. at *2. Before the district court,
the defendant argued, among other things, that a mens rea of
recklessness could not satisfy the "use of force" requirement under
the Lautenberg Amendment. Id. at *4. The district court noted
that pre-Castleman First Circuit precedent had previously
foreclosed this argument, and "[t]he question is how Castleman
affects the resolution of the issues [the defendant] has raised."
Id. at *7.
Examining Castleman's Footnote Eight, the court observed
that "[t]his footnote, which cited ten circuit courts as concluding
that reckless conduct did not constitute 'use of physical force,'
strongly hinted that the First Circuit's Booker decision was an
outlier." Id. at *8. The district court then considered the
Supreme Court's vacatur of Armstrong I in light of Castleman. Id.
The court explained that "[r]eading Supreme Court tea leaves is
chancy, but the First Circuit decision in Armstrong I was
consistent with Castleman except for the Circuit Court's brief
recklessness analysis." Id. Thus, the court found that "[i]t is
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a short logical step to conclude that the reason the Supreme Court
vacated the First Circuit decision in Armstrong I was to pull the
First Circuit in line with the other ten circuit courts in the
recklessness analysis." Id. Accordingly, on the basis of
Castleman, the vacatur of Armstrong I, and Carter, the district
court concluded that it is "questionable" whether a Maine
conviction for domestic assault -- "without more" -- qualifies as
a valid predicate conviction for the Lautenberg Amendment. Id. at
*9.
b. Carter
Following our remand instructions in Carter, the district
court permitted the parties to further develop the record with
Shepard documents to determine which subsumed variant of the Maine
assault statute formed the basis of Carter's prior state
misdemeanor conviction. Carter, 2014 WL 3345045, at *6. The only
additional document available was a transcript of Carter's plea
colloquy in Maine state court, in which Carter's attorney stated
that "'discovery shows that this was no more than a push on the
right shoulder, that it was nothing more serious than that.'" Id.
at *7. Accordingly, on the basis of all the Shepard documents, the
district court was "unable to identify the offense of Carter's
conviction." Id.
The district court cited Hines, including the statement
that "'[i]t is a short logical step to conclude that the reason the
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Supreme Court vacated the First Circuit decision in [Armstrong I]
was to pull the First Circuit in line with the other ten circuit
courts in the recklessness analysis.'" Id. at *5 (quoting Hines,
2014 WL 1875164, at *8). The court further observed that "while
the statement in Castleman was via dictum in a footnote, 'it is
much more than an offhand comment. . . . [C]arefully considered
statements of the Supreme Court, even if technically dictum, must
be accorded great weight and should be treated as authoritative.'"
Id. at *6 (quoting Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir.
2004)) (internal quotation marks omitted). Stating that it "cannot
ignore the guidance of the Supreme Court and the First Circuit in
Castleman, Armstrong and Carter," the district court concluded that
"Carter's conviction may only stand if it was premised on more than
accidental, negligent or reckless conduct." Id. Faced with the
absence of any Shepard documents permitting such a finding, the
district court granted Carter's motion to dismiss the indictment,
holding that his 1997 conviction could not serve as a predicate
misdemeanor for the Lautenberg Amendment. Id. at *7.
c. Sales
Sales, 2014 WL 3405658, is the third and, to date, final
district court case to apply Castleman and Carter. The defendant
in that case, Kenneth Sales, had pleaded guilty in Vermont state
court to one count of "assault-simple-mutual affray" because he
"engaged in a fight or scuffle entered into by mutual consent."
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Id. at *1 (citing Vt. Stat. Ann. tit. 13, § 1023). In that plea
colloquy, the Vermont Superior Court judge explained that Sales
"recklessly caused bodily injury to a person, and that it was in a
fight or scuffle entered into by mutual consent." Id. The judge
further explained that "there was a physical altercation between
[Sales] and [his girlfriend] . . . and that in the course of it
[he] at least recklessly . . . caused bodily injury to her, being
. . . a scratch or a sort of cut that she received." Id.
Explaining the actus reus of bodily injury, the judge stated that
"[b]odily injury is any sort of injury, it doesn't have to be a
broken bone or anything like that, it can be a bruise, a cut, kind
of anything that hurts." Id. With respect to the mens rea, the
judge explained that "[r]ecklessly means you did not have to intend
a particular result, but you engaged in conduct that was not what
a reasonable person would do in these circumstances, and had a very
high risk that the result would happen." Id. Subsequent to this
assault conviction in Vermont state court, Sales was charged with
a violation of the Lautenberg Amendment in federal district court
in Maine. Id. at *2.
The district court reviewed the governing precedent,
including Castleman, Carter, and the previous two district court
decisions described above, Hines and Carter. Id. at *2-3.
Observing that the Castleman court emphasized Leocal's holding that
"use" requires active employment, the district court further
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highlighted that "[t]he Supreme Court also pointed out that Booker
is out of step with other circuit courts that have held that
recklessness is not sufficient to constitute a 'use' of force."
Id. at *3 (citing Castleman, 134 S. Ct. at 1414 n.8). Accordingly,
the district court opined that "the Supreme Court's remand of
Armstrong 'in light of Castleman' is fairly construed as a
directive to the First Circuit to reconsider whether an assault
committed recklessly is sufficient to meet the federal definition
of a misdemeanor crime of domestic violence." Id. The district
court agreed with Chief Judge Woodcock that "'[r]eading Supreme
Court tea leaves is chancy,'" id. at *4 (quoting Hines, 2014 WL
1875164 at *8), but concluded that "it is hard to miss the message
here," id. The court observed that the First Circuit may yet
"decide that recklessness is sufficient," but that it would be
"presumptuous" for the district court "to make that determination."
Id. Therefore, the district court dismissed the defendant's
indictment. Id.
II. Discussion
On remand, the relevant inquiry is whether the "reckless"
causation of "offensive physical contact" under Maine law
necessarily constitutes the "use or attempted use of physical
force" for purposes of the Lautenberg Amendment. Compare Me. Rev.
Stat. tit. 17-A, § 207, with 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).
As a matter of statutory interpretation, we need to compare the
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text of each side of the equation: (a) the definition of the
"reckless" causation of "offensive physical conduct" under the
Maine assault statutes; and (b) the definition of the "use . . . of
physical force" under the federal Lautenberg Amendment. The former
inquiry is a question of Maine state law, while the latter is a
question of federal law. Applying the relevant precedent, this
discussion concludes that the reckless causation of offensive
physical contact in Maine does not necessarily constitute the "use"
of physical force and thus is not categorically a "misdemeanor
crime of domestic violence" under the Lautenberg Amendment.
A. The Meaning of the "Reckless" Causation of "Offensive Physical
Contact" Under Maine Law
1. The Meaning of "Reckless"
Under the applicable definition in the Maine Criminal
Code, "[a] person acts recklessly with respect to a result of the
person's conduct when the person consciously disregards a risk that
the person's conduct will cause such a result." Me. Rev. Stat.
tit. 17-A, § 35(3)(A). Additionally, "the disregard of the risk,
when viewed in light of the nature and purpose of the person's
conduct and the circumstances known to the person, must involve a
gross deviation from the standard of conduct that a reasonable and
prudent person would observe in the same situation." Id.
§ 35(3)(C).
The majority opinion describes this definition of
"recklessness" as involving "a substantial amount of deliberateness
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and intent." Ante, at 18. To support this assertion, the majority
follows the government's brief in emphasizing that the definition
requires that a person "consciously" disregard the risk involved,
and that this disregard involves a "gross deviation" from the
standard of reasonable and prudent conduct. Id. at 18-19. Relying
on this language, the government argues that "recklessness lies
rather close to 'knowingly'" on the "volitional scale," and that
recklessness "is arguably part and parcel of 'willfully.'"
Continuing, the government asserts that "[r]ecklessly is more akin
to deliberately or knowingly." I disagree.
Contrary to the claim that the Maine definition of
recklessness involves "a substantial amount of deliberateness and
intent," the Maine definition is in fact a textbook definition of
recklessness, falling squarely within the standard definitions of
recklessness in various jurisdictions and as defined by multiple
authorities. Indeed, the Maine definition is materially
indistinguishable from the definition of recklessness in the Model
Penal Code. Cf. Model Penal Code § 2.02(2)(c) ("A person acts
recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering the
nature and purpose of the actor's conduct and the circumstances
known to him, its disregard involves a gross deviation from the
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standard of conduct that a law-abiding person would observe in the
actor's situation."). This Model Penal Code definition contains
all of the elements and precise language highlighted by the
majority as supposedly establishing "a substantial amount of
deliberateness and intent." Cf. ante, at 18-19 ("consciously"
disregards, "nature and purpose of the person's conduct and the
circumstances known to [him]," and "gross deviation" from the
standard of care) (emphases supplied by the majority).
As revealed in the chart below, the Maine definition of
recklessness is also consistent with the equivalent definitions in
the Model Penal Code, Black's Law Dictionary, and the majority of
First Circuit jurisdictions.
Source,
Authority, or Definition
Jurisdiction
Model Penal "Recklessly. A person acts recklessly with respect to
Code a material element of an offense when he consciously
§ 2.02(2)(c) disregards a substantial and unjustifiable risk that the
(emphases material element exists or will result from his conduct.
added) The risk must be of such a nature and degree that,
considering the nature and purpose of the actor's
conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard
of conduct that a law-abiding person would observe in
the actor's situation."
Black's Law "reckless, adj. . . . Characterized by the creation of
Dictionary a substantial and unjustifiable risk of harm to others
1462 (10th and by a conscious (and sometimes deliberate) disregard
ed. 2014) for or indifference to that risk; heedless; rash.
(emphases • Reckless conduct is much more than mere negligence: it
added) is a gross deviation from what a reasonable person would
do. See recklessness. . . . Cf. careless; wanton
. . . ."
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Black's Law "recklessness, n. . . . 1. Conduct whereby the actor
Dictionary does not desire harmful consequence but nonetheless
1462 (10th foresees the possibility and consciously takes the risk.
ed. 2014) • Recklessness involves a greater degree of fault than
(emphasis negligence but a lesser degree of fault than intentional
added) wrongdoing. 2. The state of mind in which a person does
not care about the consequences of his or her actions.
-- Also termed heedlessness. Cf. wantonness."
Maine "A person acts recklessly with respect to a result of
the person's conduct when the person consciously
disregards a risk that the person's conduct will cause
such a result. . . . [T]he disregard of the risk, when
viewed in light of the nature and purpose of the
person's conduct and the circumstances known to the
person, must involve a gross deviation from the standard
of conduct that a reasonable and prudent person would
observe in the same situation." Me. Rev. Stat. tit.
17-A, § 35(3)(emphases added) (subsections defining
"recklessly" under the Maine Criminal Code section
setting out "Definitions of culpable states of mind");
see also Stein v. Me. Criminal Justice Acad., 95 A.3d
612, 618 (Me. 2014) (applying the foregoing statutory
definitions of "recklessly" to the Maine general-purpose
assault statute, § 207(1)(A)).
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Massachusetts "Reckless failure to act involves an intentional or
unreasonable disregard of a risk that presents a high
degree of probability that substantial harm will result
to another." Sandler v. Commonwealth, 419 Mass. 334,
644 N.E.2d 641, 643 (Mass. 1995). "[R]eckless conduct
involves a degree of risk and a voluntary taking of that
risk so marked that, compared to negligence, there is
not just a difference in degree but also a difference in
kind." Id., 644 N.E.2d at 644.
"To prove reckless battery, the Commonwealth must
establish '(1) that the defendant's conduct involve[d]
a high degree of likelihood that substantial harm will
result to another, or that it constitute[d] . . .
disregard of probable harmful consequences to another
and (2) that, as a result of that conduct, the victim
suffered some physical injury.'" United States v.
Holloway, 630 F.3d 252, 261 (1st Cir. 2011) (quoting
Commonwealth v. Welch, 16 Mass. App. Ct. 271, 450 N.E.2d
1100, 1102–03 (Mass. App. Ct. 1983)).
"To constitute wanton or reckless conduct, as
distinguished from mere negligence, grave danger to
others must have been apparent and the defendant must
have chosen to run the risk rather than alter his
conduct so as to avoid the act or omission which caused
the harm." Commonwealth v. Welansky, 316 Mass. 383, 55
N.E.2d 902, 910 (Mass. 1944) (internal quotation marks
omitted).
New Hampshire "'Recklessly.' A person acts recklessly with respect to
a material element of an offense when he is aware of and
consciously disregards a substantial and unjustifiable
risk that the material element exists or will result
from his conduct. The risk must be of such a nature and
degree that, considering the circumstances known to him,
its disregard constitutes a gross deviation from the
conduct that a law-abiding person would observe in the
situation. A person who creates such a risk but is
unaware thereof solely by reason of having voluntarily
engaged in intoxication or hypnosis also acts recklessly
with respect thereto." N.H. Rev. Stat. § 626:2 (II)(c)
(emphases added).
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Puerto Rico Old: "[W]hen the actor has foreseen or is conscious that
there exists a high probability that his conduct will
produce the criminal act." P.R. Laws Ann. tit. 33,
§ 5035 (2012) (unofficial translation supplied).
New: "A person acts recklessly when he is conscious that
his conduct generates a substantial and unjustified risk
that the legally prohibited result or circumstance will
be produced." 2014 P.R. Laws No. 246, art. 12
(enacting S.B. 1210, and modifying art. 22(3) of Law
146-2012) (unofficial translation supplied).13
13
The situation in Puerto Rico merits some further
explanation. Historically, under Puerto Rico's Penal Code, there
were two culpable mental states: "intent" and "negligence." See
P.R. Laws Ann. tit. 33, §§ 4650-4652 (2004). The definition of
"intent" included three variants, generally corresponding to the
concepts of "purposeful," "knowing," and "reckless" conduct under
the Model Penal Code. See id. § 4651; see also Dora Neváres-Muñiz,
Recodification of Criminal Law in a Mixed Jurisdiction: The Case of
Puerto Rico, 12.1 Elec. J. Comp. L. 16 (May 2008), available at
http://www.ejcl.org/121/art121-14.pdf. In the 2012 version of the
Puerto Rico Penal Code, the third definition of "intent" covered
reckless conduct: "when the actor has foreseen or is conscious that
there exists a high probability that his conduct will produce the
criminal act." P.R. Laws Ann. tit. 33, § 5035 (2012) (unofficial
translation supplied).
In 2014, a new law was proposed, passed by both the Puerto Rico
Senate and the House of Representatives, and sent to the Governor
for his approval. See S.B. 1210 (P.R. 2014). That law was signed
and approved on December 26, 2014, and it takes effect on March 26,
2015. See 2014 P.R. Laws No. 246. Article 12 of the new law
eliminates the old culpable mental states (intent and negligence)
and explicitly replaces them with the four mental states in the
Model Penal Code: purposely, knowingly, recklessly, and
negligently. Compare id. art. 12 (modifying art. 22 of Law No.
146-2012), with Model Penal Code § 2.02(2); see also P.R. House of
Representatives, P. del S. 1210 Informe Positivo 9 (Nov. 13, 2014),
http://www.tucamarapr.org/dnncamara/Documents/Measures/9fda6cce-8
8d9-4e39-a6ae-0dc163f421dc.pdf.
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Rhode Island "[T]he use of the word 'reckless' or 'recklessly' in
penal statutes connotes something more than the
negligence necessary to support a civil action for
damages, and that the two words impart a disregard by
the accused for the consequences of his act and an
indifference to the safety of life and limb. . . .
[T]he distinguishing factor, which properly classifies
the operation of a motor vehicle as reckless, is that
the evidence shows that a driver has embarked upon a
course of conduct which demonstrates a heedless
indifference to the consequences of his action." State
v. Lunt, 106 R.I. 379, 260 A.2d 149, 151 (R.I. 1969).
The definitions of "recklessness" in the preceding chart
demonstrate that the Maine definition is a perfectly ordinary,
textbook definition of the term. There is nothing about the Maine
statute that sets it above and beyond the standard definitions
provided in the Model Penal Code, Black's Law Dictionary, and the
other jurisdictions in the First Circuit. Nor does it seem that
the Model Penal Code and the First Circuit jurisdictions are unique
in their definitions of recklessness. See, e.g., Ariz. Rev. Stat.
§ 13-105 ("'Recklessly' means, with respect to a result or to a
circumstance described by a statute defining an offense, that a
person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and degree
that disregard of such risk constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in the
situation. . . .") (emphases added); N.Y. Penal Law § 15.05(3) ("A
person acts recklessly with respect to a result or to a
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circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and unjustifiable
risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation.") (emphases
added). Thus, the Maine definition of "recklessness" is far from
extraordinary, but rather embraces the standard, generally accepted
definition of the term.
Applying that definition, I disagree with the
government's assertion that "[r]ecklessly is more akin to
deliberately or knowingly" than negligently. The majority opinion
echoes this claim, arguing that "Maine's definitions of knowingly
as contrasted with recklessly differ primarily in their description
of the degree of the person's awareness of the likelihood that the
result will occur." Ante, at 19. The Supreme Court has held that
negligent conduct cannot constitute the "use" of force. See
Castleman, 134 S. Ct. at 1414 n.8; Leocal, 543 U.S. at 9. On a
volitional spectrum from "negligently" (clearly insufficient to
constitute the "use" of force) to "intentionally" (clearly
sufficient), the government and the majority seeks to place
"recklessly" closer to the latter end. Yet the differences between
the definitions of "recklessly" and "criminal negligence" are just
as small as (if not smaller than) the differences between
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"knowingly" and "recklessly." See Fernández–Ruiz, 466 F.3d at 1130
("To the extent recklessness differs from criminal negligence,
'[t]he difference between them is that criminal negligence requires
only a failure to perceive a risk, as compared to the recklessness
requirement of an awareness and conscious disregard of the risk.'"
(quoting In re William G., 192 Ariz. 208, 963 P.2d 287, 292 n.1
(Ariz. Ct. App. 1997))); see also 1 Charles E. Torcia, Wharton's
Criminal Law § 27 (15th ed. 1993). Indeed, just as Maine's
definitions of knowingly and recklessly "differ primarily in their
description of the degree of the person's awareness of the
likelihood that the result will occur," ante, at 19 (emphasis
added), so too do Maine's definitions of recklessness and
negligence "differ primarily in their description of the degree of
the person's awareness of the likelihood that the result will
occur," id. Compare Me. Rev. Stat. tit. 17-A, § 35(3)(A) ("A
person acts recklessly with respect to a result of the person's
conduct when the person consciously disregards a risk that the
person's conduct will cause such a result."), with id. § 35(4)(A)
("A person acts with criminal negligence with respect to a result
of the person's conduct when the person fails to be aware of a risk
that the person's conduct will cause such a result."). Therefore,
I find the attempt by the government and the majority to establish
that "reckless" conduct in Maine is akin to knowing, willful, or
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intentional conduct, or involves a "a substantial amount of
deliberateness and intent," to be unavailing.
2. The Meaning of "Offensive Physical Contact"
In this context, the actus reus of "offensive physical
contact" has two constituent elements: first, there must be
"physical contact," and second, the physical contact must also be
"offensive." Under Maine law, the physical contact required is
"not limited to direct touchings, but also c[an] be effected by
indirect touchings (e.g., the touching of items intimately
connected to the body, such as clothing or a cane, customarily
regarded as part and parcel of an individual's 'person')." Nason,
269 F.3d at 19 (citing State v. Rembert, 658 A.2d 656, 658 (Me.
1995)).
Determining whether the physical contact is "offensive"
is an objective test: courts ask whether a reasonable person would
find the physical contact to be offensive, under the particular
circumstances involved. See United States v. Pettengill, 682 F.
Supp. 2d 49, 56 (D. Me. 2010) (stating that "'offensive physical
contact' means 'physical contact which a reasonable person would
find offensive under the circumstances'" (quoting Donald G.
Alexander, Maine Jury Instruction Manual § 6–59 (4th ed. 2003));
see also State v. Pozzuoli, 693 A.2d 745, 747 (Me. 1997)) ("[T]he
question is whether a reasonable person would find the contact to
be offensive . . . ."); Restatement (Second) of Torts § 19 ("A
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bodily contact is offensive if it offends a reasonable sense of
personal dignity."). Offensive physical contact, therefore,
involves "'something less than bodily injury . . . but requires
more than a mere touching of another.'" Nason, 269 F.3d at 19
(alteration in original) (quoting Pozzuoli, 693 A.2d at 747).
In examining the Maine assault statute, we have
previously observed that "[t]wo factors distinguish mere touchings
from offensive physical contacts: the mens rea requirement, and the
application of a 'reasonable person' standard to determine whether
a contact is offensive." Nason, 269 F.3d at 19 (citations
omitted). Accordingly, to recklessly cause an offensive physical
contact in Maine, a person must consciously disregard a risk that
his or her conduct will cause physical contact -- something more
than a mere touching -- that a reasonable person would find to be
offensive under the circumstances. See Me. Rev. Stat. tit. 17-A,
§ 35(3)(A); Nason, 269 F.3d at 19; Pettengill, 682 F. Supp. 2d at
56; Pozzuoli, 693 A.2d at 747. Moreover, the disregard of that
risk "when viewed in light of the nature and purpose of the
person's conduct and the circumstances known to the person, must
involve a gross deviation from the standard of conduct that a
reasonable and prudent person would observe in the same situation."
Me. Rev. Stat. tit. 17-A, § 35(3)(C).
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B. The Meaning of "Use . . . of Physical Force" Under Federal Law
1. The "Use" of "Force" and Common-Law Battery
The following discussion demonstrates that under the
Lautenberg Amendment, the use-of-force requirement can be satisfied
by an actus reus of an offensive touching, but such an offensive
touch must be committed with a mens rea of intent rather than mere
recklessness. In Castleman, the Supreme Court held that "force,"
for purposes of the Lautenberg Amendment, incorporates the common-
law meaning of "force." Castleman, 134 S. Ct. at 1410-11. The
Court further stated that "it makes sense for Congress to have
classified as a 'misdemeanor crime of domestic violence' the type
of conduct that supports a common-law battery conviction." Id. at
1411. On that basis, the Court held that "the requirement of
'physical force' is satisfied, for purposes of § 922(g)(9), by the
degree of force that supports a common-law battery conviction" --
including an offensive touching. Id. at 1413.
I agree with the government's contention that "it makes
sense for Congress to have classified as a 'misdemeanor crime of
domestic violence'" not only "the type of conduct that supports a
common-law battery conviction," id. at 1411, but also the culpable
mental states that support a battery conviction under the common
law. See, e.g., Freed, 401 U.S. at 607-08 ("'(W)here Congress
borrows terms of art in which are accumulated the legal tradition
and meaning of centuries of practice, it presumably knows and
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adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless otherwise
instructed.'" (alteration in original) (quoting Morissette v.
United States, 342 U.S. 246, 263 (1952))); see also Sekhar v.
United States, 133 S. Ct. 2720, 2724 (2013) ("It is a settled
principle of interpretation that, absent other indication,
'Congress intends to incorporate the well-settled meaning of the
common-law terms it uses.'" (quoting Neder v. United States, 527
U.S. 1, 23 (1999))). Thus, as urged by both parties here and as
suggested by the Supreme Court in Castleman, I turn to examine the
culpable mental states that attach to the common-law crime of
battery. See Castleman, 134 S. Ct. at 1410-11.
In Johnson, the Supreme Court explained that "the
common-law crime of battery . . . consisted of the intentional
application of unlawful force against the person of another."
Johnson, 559 U.S. at 139 (emphasis added). According to Supreme
Court precedent, therefore, although the Lautenberg Amendment's
"force" requirement can be satisfied by an actus reus of an
offensive touching, such offensive contact must involve a mens rea
of intent rather than mere recklessness. See id.; see also Bailey
v. United States, 516 U.S. 137, 143 (1995) (defining the word "use"
for purposes of the pre-1998 text of 18 U.S.C. § 924(c) -- which
had provided certain penalties if the defendant "uses or carries a
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firearm" during a crime of violence -- and holding that such "use"
required "active employment" and not "mere possession of a
firearm"), superseded by statute, Bailey Fix Act, Pub. L. No. 105-
386, 112 Stat. 3469 (1998), as recognized in Abbott v. United
States, 562 U.S. 8 (2010); Rembert, 658 A.2d at 658 (stating that
"[u]npermitted and intentional contacts . . . [are] actionable as
an offensive contact"); Lynch v. Commonwealth, 131 Va. 762, 109
S.E. 427, 428 (Va. 1921) ("To constitute battery there must be some
touching of the person of another, but not every such touching will
amount to the offense. Whether it does or not will depend, not
upon the amount of force applied, but upon the intent of the
actor."); id. at 428 (reasoning that when a man placed his hand on
a woman's shoulder after she already rejected his romantic
advances, the evidence was sufficient to justify a verdict of guilt
for battery due to the defendant's "willful violation of the
sanctity of her person" (emphasis added)); Black's Law Dictionary
182 (10th ed. 2014) (defining tortious battery as a "nonconsensual,
intentional, and offensive touching of another without lawful
justification").
The sources cited by the government do not demonstrate
otherwise. These sources suggest, at best, that a common-law
battery by "bodily injury" or "infliction of harm" can be committed
recklessly; they do not establish that a common-law battery by
"offensive physical contact" can be committed recklessly. See,
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e.g., Model Penal Code § 211.1(1)(a) ("A person is guilty of
assault if he . . . attempts to cause or purposely, knowingly or
recklessly causes bodily injury to another . . . ."); Wayne R.
LaFave, 2 Substantive Criminal Law § 16.2(a) (2d ed.) ("The modern
approach, as reflected in the Model Penal Code, is to limit battery
to instances of physical injury and cover unwanted sexual advances
by other statutes."); id. § 16.2(c)(2) n.32 ("[W]ith the tort of
battery an intention to injure or touch offensively is needed");
see also Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863
(1893) (stating that "the intent necessary to constitute" an
offense of assault and battery is the "intentional doing of an
action which, by reason of its wanton or grossly negligent
character, exposes another to personal injury, and causes such an
injury," without saying anything regarding whether such an offense
could be committed by causing offensive physical contact).
The weakness of the government's argument is revealed by
its selective citation and selective quoting. For example, the
government quotes a criminal law treatise for the proposition that
"a substantial majority of the battery-type statutes" in modern
criminal codes "expressly state that the crime may be committed by
recklessness," but conveniently omits the immediately following
clause at the end of that sentence: "-- that is, where there is
subjective awareness of the high risk of physical injury." LaFave,
supra, § 16.2(c)(2) (emphasis added). The unabridged sentence says
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nothing about whether a battery by offensive touching can be
committed by recklessness. Indeed, in the same section, the cited
treatise states that the modern approach "limit[s] battery to
instances of physical injury." Id. § 16.2(a). Furthermore, the
treatise explains that the Model Penal Code's assault provision
"covers only causing 'bodily injury,' on the ground that 'offensive
touching is not sufficiently serious to be made criminal, except in
the case of sexual assaults as provided' elsewhere in the Code."
Id. § 16.2(a) n.6 (quoting Model Penal Code § 211.1 cmt. at 185
(1980)). Given the foregoing, there is no justification for the
majority's heavy reliance on the legislative history of the
Lautenberg Amendment. See, e.g., Rubin v. United States, 449 U.S.
424, 430 (1981) ("When we find the terms of a statute unambiguous,
judicial inquiry is complete, except 'in rare and exceptional
circumstances.'" (quoting Tenn. Valley Auth. v. Hill, 437 U.S.
153, 187 n.33 (1978)) (internal quotation marks and citation
omitted)).
Contrary to the government's arguments, our decision in
United States v. Bayes, 210 F.3d 64 (1st Cir. 2000), supports the
conclusion that battery by offensive touching requires intent and
not mere recklessness with respect to the offensiveness of the
contact. In Bayes, we evaluated the defendant's challenge to the
sufficiency of the evidence to support his conviction for simple
assault under 18 U.S.C. § 113(a)(5). Bayes, 210 F.3d at 65. The
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factual basis for the offense was that the defendant, Christopher
Bayes, while on a Delta Airlines flight from Atlanta to England,
"'put his hand on [a flight attendant's] buttocks and rubbed [her]
buttocks and grabbed at the bottom of [her] buttocks,'" which a
nearby passenger described as Bayes "'reaching behind the flight
attendant and grabbing her in the rear end'" and "'squeezing.'"
Id. at 66 (second and third alterations in original) (quoting trial
testimony). "Bayes persisted in being unruly despite periodic
warnings from members of the crew." Id. "A scuffle ensued, ending
only after the captain dumped thousands of gallons of fuel,
diverted the aircraft in mid-flight, and made an unscheduled
landing [in Maine] so that Bayes could be taken off the
plane. . . ." Id.
Bayes argued that simple assault required "a specific
kind of intent that the government failed to prove." Id. Namely,
Bayes contended that "the government did not prove that he intended
to injure [the flight attendant] or to threaten her with harm when
he touched her on the buttocks." Id. at 67. Because the statute
in question, § 113(a)(5), criminalized "[s]imple assault" but did
"not define that term in any way," we "turn[ed] to the common law
for additional guidance." Id. at 67-68. We stated that "the
common law provided that an assault committed by way of a battery
did not require an intent to cause or to threaten an injury as long
as the defendant touched another in a deliberately offensive manner
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without a valid reason to do so." Id. at 69 (emphasis added). We
reviewed prior opinions and determined that they "support the
conclusion that, in a prosecution for simple assault under
§ 113(a)(5), it is sufficient to show that the defendant
deliberately touched another in a patently offensive manner without
justification or excuse." Id. (emphases added). Therefore, we
held that the evidence supported Bayes's conviction because "the
jury was entitled to conclude that Bayes had groped [the flight
attendant] in a way that could not have been accidental, that must
have been deliberate, and that was patently offensive." Id.
(emphases added).
The preceding language from Bayes reveals that the mens
rea required for a § 113(a)(5) battery-by-offensive-touching
conviction is intent and not mere recklessness: the defendant must
"deliberately" (and not accidentally) touch the victim in a
"deliberately offensive" manner. See id. By contrast, under the
Maine assault statutes, a defendant can commit the offense
recklessly by merely disregarding (a) the risk that his conduct
will cause physical contact (more than a mere touching) to occur,
and (b) the risk that a reasonable person would find that physical
contact to be offensive. See Me. Rev. Stat. tit. 17-A, § 35(3)(A).
The "deliberate" intent that we required in Bayes is thus not
necessary for a conviction for recklessly committed assault or
domestic-violence assault in Maine.
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Therefore, the following conclusion must be drawn: under
the Lautenberg Amendment, the "force" requirement can be satisfied
by an actus reus of an offensive touching, but such an offensive
touch must involve a mens rea of intent rather than mere
recklessness. That is, the defendant must intend to touch and
intend that the touch be offensive, rather than merely disregard
the risk that a touch will occur and be considered offensive. By
contrast, the Maine statutes at issue permit conviction when the
defendant merely disregards a risk that his or her conduct will
cause physical contact that a reasonable person would find to be
offensive. Accordingly, applying a categorical approach and the
Supreme Court's statements in Castleman and Johnson, a conviction
under either of the Maine assault statutes encompasses conduct
beyond the common-law definition of battery, and thus does not
necessarily establish a misdemeanor crime of domestic violence
under the Lautenberg Amendment. This conclusion mandates reversal
here and is further supported by Footnote Eight of Castleman and
the circuit court cases cited therein, as explained below.
2. Castleman's Footnote Eight
In Castleman, the Supreme Court opined that the "merely
reckless causation of bodily injury under the [Tennessee assault
statute] may not be a 'use' of force." Castleman, 134 S. Ct. at
1414. The Court explained this statement in Footnote Eight, noting
that Leocal held that "'"use" requires active employment.'" Id. at
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1414 n.8 (quoting Leocal, 543 U.S. at 9). The Court then stated
that "the Courts of Appeals have almost uniformly held that
recklessness is not sufficient," contrasting decisions from ten
other circuit courts of appeals against our opinion in Booker,
which the Supreme Court listed as the only outlier.14 Together, as
explained in more detail below, these cases establish that a
predicate "crime of violence" under 18 U.S.C. § 16 and analogous
provisions must be committed with a degree of intentionality
greater than recklessness. Although § 16 is a different federal
statute, its language is substantially similar to the definition of
a misdemeanor crime of domestic violence for purposes of the
Lautenberg Amendment. In particular, the definition in § 16(a) is
nearly identical to the equivalent definition for § 922(g)(9).
Compare 18 U.S.C. § 16(a) (defining the term "crime of violence" to
mean "an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
14
Id. To illustrate contrast with our holding in United
States v. Booker, 644 F.3d 12, 19–20 (1st Cir. 2011), the Supreme
Court cited the following circuit court decisions in Castleman's
Footnote Eight: United States v. Palomino García, 606 F.3d 1317,
1335–36 (11th Cir. 2010); Jiménez–González v. Mukasey, 548 F.3d
557, 560 (7th Cir. 2008); United States v. Zúñiga–Soto, 527 F.3d
1110, 1124 (10th Cir. 2008); United States v. Torres–Villalobos,
487 F.3d 607, 615–16 (8th Cir. 2007); United States v. Portela, 469
F.3d 496, 499 (6th Cir. 2006); Fernández–Ruiz v. Gonzales, 466 F.3d
1121, 1127–32 (9th Cir. 2006) (en banc); García v. Gonzales, 455
F.3d 465, 468–69 (4th Cir. 2006); Oyebanji v. Gonzales, 418 F.3d
260, 263–65 (3d Cir. 2005); Jobson v. Ashcroft, 326 F.3d 367, 373
(2d Cir. 2003); United States v. Chapa–Garza, 243 F.3d 921, 926
(5th Cir. 2001).
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another"), with 18 U.S.C. § 921(a)(33)(A) (defining a "misdemeanor
crime of domestic violence" as an misdemeanor offense that "has, as
an element, the use or attempted use of physical force"). Keeping
the similarity of the analogous statutes in mind, I review below
each case cited by the Supreme Court in Castleman's Footnote Eight.
a. Second Circuit
The Second Circuit considered the issue in Jobson v.
Ashcroft, 326 F.3d 367, 369 (2d Cir. 2003), which examined whether
second-degree manslaughter in New York constituted a crime of
violence under 18 U.S.C. § 16(b). A "crime of violence" is defined
in § 16(b) as "any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense." 18 U.S.C. § 16(b).15 The Second Circuit
15
Given that § 16(b)'s definition includes offenses that
merely "involve[] a substantial risk that physical force . . . may
be used," id. (emphasis added), its language is far more
susceptible to a reading that it encompasses reckless conduct than
is the equivalent language for § 16(a) and § 922(g)(9), which both
require the "use" or "attempted use" of "physical force." See
supra n.2; see also 18 U.S.C. § 16(a); id. § 922(g)(9); id.
§ 921(a)(33)(A); Me. Rev. Stat. tit. 17-A, § 35(3) ("A person acts
recklessly with respect to a result of the person's conduct when
the person consciously disregards a risk that the person's conduct
will cause such a result. . . ."); Model Penal Code § 2.02(2)(c)
("A person acts recklessly . . . when he consciously disregards a
substantial and unjustifiable risk that the material element exists
or will result from his conduct."). Therefore, the cases holding
that reckless conduct is insufficient to support a subsequent
§ 16(b) conviction provide even stronger support for the
defendants' position than do the cases involving § 16(a). Cf.
García, 455 F.3d at 468 (reasoning that the "use" of "physical
force" requires the intentional employment of physical force, and
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reiterated its previous holding that "the verb 'use' in section
16(b), particularly when modified by the phrase 'in the course of
committing the offense,' suggests that section 16(b) 'contemplates
only intentional conduct and refers only to those offenses in which
there is a substantial likelihood that the perpetrator will
intentionally employ physical force.'" Jobson, 326 F.3d at 373
(internal quotation marks omitted) (quoting Dalton v. Ashcroft, 257
F.3d 200, 208 (2d Cir. 2001)).
To satisfy § 16(b)'s definition of "crime of violence,"
therefore, a defendant must have risked having to intentionally use
force to commit the offense. Id. at 374; see also id. at 373
("[T]he risk in section 16(b) concerns the defendant's likely use
of violent force as a means to an end."). "By contrast, a
defendant who is convicted of second-degree manslaughter, like
other offenses of pure recklessness, may lack any 'intent, desire
or willingness to use force or cause harm at all.'" Id. at 374
(quoting United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992),
abrogated on other grounds by Begay v. United States, 553 U.S. 137
(2008)). Accordingly, the Second Circuit concluded that second-
degree manslaughter in New York is not a crime a violence under
therefore holding that a New York second-degree reckless assault
conviction "does not contain an element that there be the
intentional employment of physical force against a person or thing,
and thus is beyond the scope of 18 U.S.C. § 16(a)").
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§ 16(b) and thus is not an aggravated felony justifying removal
under the immigration laws. Id. at 376.
b. Third Circuit
The Third Circuit reached a similar result in Oyebanji v.
Gonzales, 418 F.3d 260, 263 (3d Cir. 2005), which also involved
immigration removal proceedings premised upon the definition of
"crime of violence" under § 16(b). The petitioner's underlying
conviction was for vehicular homicide under New Jersey law, which
requires proof of recklessness. Id. The Third Circuit thus stated
that it was "required to decide the very question that the Leocal
Court did not reach" -- "'whether a state or federal offense that
requires proof of the reckless use of force against a person or
property of another qualifies as a crime of violence under 18
U.S.C. § 16.'" Id. (quoting Leocal, 543 U.S. at 13).
Citing the Leocal Court's distinction between "violent"
crime and merely "accidental" conduct, the Third Circuit explained
that "[t]he quintessential violent crimes -- murder, assault,
battery, rape, etc. -- involve the intentional use of actual or
threatened force against another's person, and the term
'accidental' is most often used to describe events that did not
'occur [ ] as a result of anyone's purposeful act.'" Id. at 264
(second alteration in original) (citing Black's Law Dictionary 16
(8th ed. 1999)). The Third Circuit reasoned that "accidental"
conduct "is not enough to qualify as a crime of violence" under
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Leocal, and it decided that such "accidental" conduct "would seem
to include reckless conduct." Id. The panel further stated that
the Third Circuit ought to follow the Supreme Court's "'considered
dicta"' in Leocal, id. at 265 (quoting McCoy, 950 F.2d at 19), and
that while the panel "appreciate[d]" the government's arguments, it
"believe[d] that those arguments must be directed to the Supreme
Court or Congress." Id.
c. Fourth Circuit
The Fourth Circuit considered these issues in García v.
Gonzales, 455 F.3d 465 (4th Cir. 2006). García also involved
removal proceedings and whether a certain predicate offense
qualified as an aggravated felony by virtue of being "a crime of
violence" under 18 U.S.C. § 16. Id. at 468. The predicate offense
considered in García was reckless assault in the second degree
under New York law, which provides that "'[a] person is guilty of
assault in the second degree when . . . (4) He recklessly causes
serious physical injury to another person by means of a deadly
weapon or a dangerous instrument.'" Id. (alterations in original)
(quoting N.Y. Penal Law § 120.05). The Fourth Circuit summarily
determined that the first definition of "a crime of violence" under
§ 16(a) -- "an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another" -- did not apply to the New York second-degree
reckless assault conviction. Id. at 468 (quoting 18 U.S.C.
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§ 16(a)). The court reasoned that the definition of the New York
offense "does not contain an element that there be the intentional
employment of physical force against a person or thing, and thus is
beyond the scope of 18 U.S.C. § 16(a)." Id. (emphasis added).
Therefore, according to the Fourth Circuit, "the use . . . of
physical force" requires the intentional employment of physical
force. See id.
Turning to the definition in § 16(b), the Fourth Circuit
held that "recklessness, like negligence, is not enough to support
a determination that a crime is a 'crime of violence.'" Id. at
469. In making this determination, the Fourth Circuit held that in
order to satisfy § 16(b)'s requirement that the predicate offense
"involve a substantial risk that physical force against the person
or property of another may be used," the force must "be applied as
a means to an end." Id. (quoting Bejarano-Urrutia v. Gonzales, 413
F.3d 444, 447 (4th Cir. 2005)) (internal quotation marks omitted);
see also id. ("[W]e are of opinion that 18 U.S.C. § 16(b) requires
that the substantial risk involved be a substantial risk that force
will be employed as a means to an end in the commission of the
crime, not merely that reckless conduct could result in injury.").
d. Fifth Circuit
The Fifth Circuit considered the definition of "crime of
violence" under 18 U.S.C. § 16(b) in United States v. Chapa–Garza,
243 F.3d 921 (5th Cir. 2001). In that case, the Fifth Circuit
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reasoned that § 16(b) requires that "the offender intentionally use
the force against the person or property of another." Id. at 927.
Because "[i]ntentional force against another's person or property
is virtually never employed to commit" the offense of felony
driving while intoxicated ("DWI") in Texas, the court held that
"felony DWI is not a crime of violence as defined by 18 U.S.C.
§ 16(b)." Id.
e. Sixth Circuit
In United States v. Portela, 469 F.3d 496, 499 (6th Cir.
2006), the Sixth Circuit followed the "'considered dicta'" of
Leocal and the reasoning of the Third and Fourth Circuits to hold
that "a crime requiring only recklessness does not qualify as a
'crime of violence' under 18 U.S.C. § 16," nor, because it "uses
identical language," under U.S. Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(b)(1).
f. Seventh Circuit
Similarly, the Seventh Circuit followed its sister
circuits in holding that "reckless crimes are not crimes of
violence under Section 16(b)." Jiménez–González v. Mukasey, 548
F.3d 557, 560 (7th Cir. 2008). The Seventh Circuit found
persuasive the Third Circuit's reasoning in Oyebanji that the use
of physical force requires active employment and not merely
negligent or accidental conduct. Id. (citing Oyebanji, 418 F.3d at
263). The Seventh Circuit further reasoned that "accidental and
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reckless crimes are not the type of 'violent' crimes Congress
intended to distinguish as worthy of removal." Id. To support its
holding, the Seventh Circuit emphasized the "primary distinction"
that crimes of violence involve intentional conduct whereas most
crimes of recklessness involve non-purposeful conduct. See id. at
561-62.
g. Eighth Circuit
Likewise, the Eighth Circuit stated that the Leocal
"Court's reasoning suggests that crimes requiring only reckless
disregard for the risk of physical injury to another are not crimes
of violence under § 16." United States v. Torres–Villalobos, 487
F.3d 607, 615 (8th Cir. 2007). Examining Minnesota law, the Eighth
Circuit determined that "a person can commit second-degree
manslaughter without using force or risking the intentional use of
force," because the crime can be committed recklessly. Id. at 616.
Giving examples, the court explained that:
A person can commit this crime by recklessly
leaving a child alone with lit candles that
later start a fire, by allowing a child to die
of dehydration while in the person's care, by
leaving explosives and blasting caps stored in
an automobile where they are later ignited by
the use of jumper cables, and, indeed, by
driving drunk with 'culpable negligence' in a
manner that causes the death of a passenger.
Id. (internal citations omitted). Therefore, the court held, "the
'use of force,' as Leocal interpreted that phrase, is not an
element of a second-degree manslaughter conviction," meaning that
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the Minnesota second-degree manslaughter offense is not a crime of
violence under § 16(a). Id. Turning to § 16(b), the court also
held that second-degree manslaughter under Minnesota law does not
"involve a risk that the perpetrator will intentionally use
physical force in the course of committing the offense." Id. at
616-17. Because Minnesota second-degree manslaughter can be
committed recklessly without the intentional use of force or
risking the intentional use of force, the Eighth Circuit held that
it is not a crime of violence under § 16. Id. at 617.
h. Ninth Circuit
In Fernández–Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th
Cir. 2006) (en banc), the Ninth Circuit held that a prior Arizona
assault conviction did not constitute a crime of violence under
§ 16(a) because that federal statute "covers only those crimes
involving intentional conduct," and thus the merely reckless use of
force (as covered by the Arizona statute) was insufficient to
establish a violation. See also id. ("Because the relevant Arizona
statute permits conviction when a defendant recklessly but
unintentionally causes physical injury to another, and because the
petitioner's documents of conviction do not prove he intentionally
used force against another, we conclude the federal statute does
not apply."). In so holding, the court "agree[d] with [its] sister
circuits that the reasoning of Leocal -- which merely holds that
using force negligently or less is not a crime of violence --
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extends to crimes involving the reckless use of force." Id. at
1129. The Ninth Circuit reasoned that Leocal emphasized that
crimes of violence cannot be "'accidental.'" Id. (quoting Leocal,
543 U.S. at 9). The court defined "accidental" as "'[n]ot having
occurred as a result of anyone's purposeful act,'" and it defined
"purposeful" as "'[d]one with a specific purpose in mind.'" Id. at
1129-30 (alterations in original) (citing Black's Law Dictionary
16, 1298 (8th ed. 2004)). The Ninth Circuit further concluded that
"[r]eckless conduct, as generally defined, is not purposeful." Id.
at 1130.
"Even more clearly, reckless conduct as defined by
Arizona law is not purposeful." Id. As support for this
statement, the Ninth Circuit cited the Arizona criminal statute
defining recklessness. Id. Under that statute, "'[r]ecklessly'
means . . . that a person is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or
that the circumstance exists." Ariz. Rev. Stat. Ann. § 13-105
(10)(c). That "risk must be of such nature and degree that
disregard of such risk constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in the
situation." Id. This definition of recklessness is substantially
similar to the equivalent Maine definition, as well as the other
definitions outlined in the chart in Part II(A)(1), supra. For
purposes of § 16, the Ninth Circuit saw no important differences
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between negligence and recklessness, considering each mens rea to
constitute the type of non-purposeful conduct that Leocal held was
insufficient to establish a crime of violence involving the "use"
of force. Fernández-Ruiz, 466 F.3d at 1129-30. The court reasoned
that the "plain meaning" of the word "use" denotes that "physical
force is instrumental to carrying out the crime." Id. By
contrast, the "subjective awareness" of risk that characterizes a
reckless act "is not the same as the intentional use of physical
force against the person of another." Id. The court further
explained that "[t]he bedrock principle of Leocal is that to
constitute a federal crime of violence an offense must involve the
intentional use of force against the person or property of
another." Id. at 1132. Therefore, the Ninth Circuit concluded
that recklessness is not "a sufficient mens rea to establish that
a conviction is for a crime of violence under § 16." Id. at 1130.
i. Tenth Circuit
In United States v. Zúñiga–Soto, 527 F.3d 1110, 1113
(10th Cir. 2008), the Tenth Circuit considered whether the "crime
of violence" enhancement provision under U.S.S.G. § 2L1.2 applied
to the appellant's prior Texas state conviction for assaulting a
public servant. Applying the commentary to this U.S.S.G.
provision, the Tenth Circuit's "sole task" was to whether the
appellant's "prior felony conviction qualifies as a crime of
violence because the offense had as an element the use of physical
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force." Id. at 1115. Under the appellant's offense of conviction,
a person commits an assault if he or she "intentionally, knowingly,
or recklessly causes bodily injury to another." Tex. Penal Code
Ann. § 22.01(a)(1). On appeal to the Tenth Circuit, the appellant
argued that "his prior conviction did not have as an element the
use of physical force because the Texas assault statute's mens rea
component could be satisfied by recklessness." Zúñiga-Soto, 527
F.3d at 1115. The Tenth Circuit agreed, citing Leocal, its own
precedent, and "the persuasive reasoning of [its] sister circuits."
Id. at 1113, 1123.
j. Eleventh Circuit
Finally, applying similar reasoning, the Eleventh Circuit
also relied on Leocal and the decisions of the other circuit courts
to hold that "a conviction predicated on a mens rea of recklessness
does not satisfy the 'use of physical force' requirement under
[U.S.S.G.] § 2L1.2's definition of 'crime of violence.'" United
States v. Palomino García, 606 F.3d 1317, 1336 (11th Cir. 2010).
Citing "the near unanimity of the circuit courts on this issue,"
the Eleventh Circuit concluded that Leocal "plainly suggests that
crimes requiring only a reckless[] disregard for the risk of
physical injury to others are not crimes of violence." Id. at 1336
n.16. The Eleventh Circuit further explained that "[b]ecause
Arizona law defines recklessness as nothing more than the conscious
disregard of a substantial and unjustifiable risk, this is more
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akin to negligence and cannot be said to require the intentional
use of force." Id. at 1336 (internal citation omitted).
Therefore, the court held that an Arizona conviction "predicated on
the reckless causation of physical injury does not qualify as a
crime of violence under [U.S.S.G.] § 2L1.2." Id.
C. Comparison of Analogous Statutory Language
As is evident from the discussion above, most of our
sister circuits have held that the "use . . . of physical force"
requires the type of intentional conduct for which mere
recklessness cannot suffice. Although these cases involved
different provisions than the Lautenberg Amendment, the statutory
texts involved are not materially different, and in many cases, are
virtually identical. As referenced herein, analogous provisions to
the definition of "misdemeanor crime of domestic violence" for
purposes of the Lautenberg Amendment are compared in the following
chart:
Statute Relevant Language
"misdemeanor crime of "has, as an element, the use or
domestic violence," attempted use of physical force"
Lautenberg Amendment, 18 U.S.C. § 921(a)(33)(A)
18 U.S.C. § 922(g)(9)
"crime of violence," "has as an element the use, attempted
18 U.S.C. § 16(a) use, or threatened use of physical
force against the person or property
of another"
18 U.S.C. § 16(a)
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"crime of violence," "any other offense that is a felony
18 U.S.C. § 16(b) and that, by its nature, involves a
substantial risk that physical force
against the person or property of
another may be used in the course of
committing the offense"
18 U.S.C. § 16(b)
"[c]rime of violence," "[an] offense . . . that has as an
U.S.S.G. § 2L1.2 element the use, attempted use, or
threatened use of physical force
against the person of another"
U.S.S.G. § 2L1.2, cmt. 1(B)(iii).
"violent felony" under "has as an element the use, attempted
the ACCA, 18 U.S.C. use, or threatened use of physical
§ 924(e)(1) force against the person of another"
18 U.S.C. § 924(e)(2)(B)(I)
It is readily apparent that the language involved in most
of the preceding provisions is nearly identical, and for present
purposes is materially indistinguishable.16 Moreover, I do not
16
The majority claims that § 16(a) is "not analogous" to
§ 922(g)(9). Ante, at 12. I disagree, given that these two
provisions contain nearly identical language. Section 16(a)
defines a "crime of violence," whereas § 922(g)(9) involves a
"misdemeanor crime of domestic violence." The relevant definition
for § 922(g)(9) is an offense that "has, as an element, the use or
attempted use of physical force." 18 U.S.C. § 921(a)(33)(A). The
definition under § 16(a) is materially indistinguishable: an
offense that "has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another." Id. § 16(a). This definition differs only in the
addition of the "threatened use" of physical force as an
alternative, and the explanation that the force be used "against
the person or property of another." The former difference (the
inclusion of "threatened use") is neither implicated in the current
case nor in any of the analogous precedents referenced herein. The
latter change appears to be largely a distinction without a
difference, as it is difficult to contemplate how or why the "use
of physical force" for purposes of § 922(g)(9) would mean force
used in any way other than "against the person or property of
another."
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doubt that the Supreme Court was well aware that the cases it cited
in Castleman's Footnote Eight involved different provisions, yet
the Court nonetheless contrasted the holdings of our sister
circuits in those cases with our holding in Booker before remanding
the instant cases to us for reconsideration in light of Castleman.
See Castleman, 134 S. Ct. at 1414 n.8. Thus, to the Supreme Court,
these cases and provisions were sufficiently analogous to justify
the instant remand. Cf. Smith, 544 U.S. at 233 ("[W]hen Congress
uses the same language in two statutes having similar purposes,
particularly when one is enacted shortly after the other, it is
appropriate to presume that Congress intended that text to have the
same meaning in both statutes."); Northcross v. Bd. of Educ. of
Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam) (stating
that "[t]he similarity of language" in two statutory provisions
sharing "a common raison d'etre" constitutes "a strong indication
that the two statutes should be interpreted pari passu"). The
government and the majority fail to persuasively establish that the
meaning of "the use . . . of physical force" in these various
federal definitions of a "crime of violence" should be so similar
in every other context, yet so different as to be outcome-
determinative in the instant context. For those reasons, I find
the foregoing precedent more persuasive than the majority opinion
here. I thus agree with our sister circuits that the "use . . . of
physical force" for a "crime of violence" requires the intentional,
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and not merely reckless, employment of physical force. I find this
conclusion to be particularly true for the subsumed offense at
issue in the instant case: the combination of a mens rea of
"recklessness" with an actus reus of "offensive physical contact."
Cf. Nason, 269 F.3d at 19 (stating that the mens rea requirement is
one of two factors that "distinguish mere touchings from offensive
physical contacts").
III. Conclusion
Despite the foregoing precedent from the Supreme Court
and our sister circuits, the majority opinion nonetheless seeks to
hew to our prior decision in Booker and to resolve these cases, yet
again, exactly as we did in Armstrong I and Voisine I. With due
respect, for the reasons explained above, I believe that the
majority is wrong.
The Lautenberg Amendment is premised upon grave concerns
and laudable purposes, as articulated both by the Supreme Court in
Castleman and by the majority in this case. I share those concerns
and strongly agree with those purposes. However, a general
agreement with those goals need not dictate the result here. This
case does not present a litmus test for judges, asking whether we
oppose domestic violence and gun violence. Were our job so simple,
it would be an easy matter to decide in favor of the government.
But that is not our role. Our judicial obligations preclude us
from such results-oriented decisionmaking.
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Rather than deciding on the basis of personal beliefs and
policy preferences, or seeking to ensure that the Lautenberg
Amendment encompass the broadest possible swath of conduct within
its ambit, this case requires us to engage in statutory
interpretation. This legal task implicates the difference between
Congress's broad policy goals versus the precise statutory language
employed to achieve those ends. That is, does the language chosen
by Congress -- the "use or attempted use of physical force" --
necessarily apply to all Maine misdemeanor assault convictions for
recklessly causing offensive physical contact? Applying the
relevant precedent to this question of statutory interpretation
counsels that we answer this inquiry in the negative and resolve
this appeal in favor of the defendants. I conclude that the
particular subsumed Maine offense at issue here, the reckless
causation of offensive physical contact, does not necessarily
require the "use . . . of physical force" and thus does not
categorically constitute a misdemeanor crime of domestic violence
under the Lautenberg Amendment.
For the reasons stated herein, I would reverse the
defendants' convictions. Indeed, I believe that the Supreme Court
has obligated us to do so. Therefore, I respectfully dissent.
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