United States v. Derek Duane Page

MOORE, Circuit Judge,

concurring in part and dissenting in part.

As a response to the “escalating problem of violence against women” and in recognition of the severe toll such crimes have on our society in terms of “health care, criminal justice, and other social costs,” Congress enacted in 1994 the Violence Against Women Act (“VAWA” or the “Act”). S.Rep. No. 103-138, at 37, 41 (1993) (VAWA of 1993). While in enacting the VAWA Congress was particularly concerned with those.crimes which disproportionately burden women, the language of the Act’s interstate domestic violence provision is gender-neutral, see id. at 37, and enforcement has been gender-neutral as well. See, e.g., United States v. Gluzman, 953 F.Supp. 84 (S.D.N.Y.1997) (upholding the indictment of a wife for the murder of her estranged husband in violation of 18 U.S.C. § 2261).

This interstate-domestic violence provision, codified as 18 U.S.C. § 2261(a)(2), makes it illegal for any person to “cause[ ] a spouse or intimate partner to cross a State line ... by force, coercion, duress ... and, in the course or as a result of that conduct, intentionally eommitf ] a crime of violence and thereby cause[ ] bodily injury to the person’s spouse or intimate partner....” While I agree with the majority that 18 U.S.C. § 2261(a)(2) does not exceed Congress’s powers under the Commerce Clause and that this statutory *491provision criminalizes the forcing of an intimate partner across state lines under threat of violence, whereby bodily injuries are aggravated during the transportation, I write separately to emphasize my disagreement with the majority’s opinion in one crucial respect. It is my firm conviction that the language of this statutory provision also reaches the forcing of an intimate partner across state lines where such transportation is integrally related to a prior beating, even if that beating occurs before transportation commences. Because I believe the majority misconstrues 18 U.S.C. § 2261(a)(2) in this important respect, makes distinctions that are not mandated by the statute, and adopts an unnecessarily crabbed interpretation, I must respectfully dissent with respect to Part II and the related aspects of the majority’s opinion.

I. FACTS

The facts of this case are not unlike the story of many women who attempt to leave an abusive relationship. Like many of their experiences, Scrivens’s relationship with Page started out on fairly blissful terms. Joint Appendix (J.A.) at 302-03 (Scrivens Test, at 395-96). Yet, Page soon became controlling, possessive, and even physically abusive, demanding that Scrivens stop associating with her friends and family, controlling what she could or could not wear or eat, and on one occasion even punishing her disobedience with a stun gun and mace. J.A. at 303-07 (Scrivens Test, at 396-400). In light of the deterioration in their relationship, after less than three months together, Scrivens told Page that she was moving out and ending their relationship. J.A. at 293-95, 310-311 (Scrivens Test, at 376-78,408-09)..

The planned attack against Scrivens took place when she went back to Page’s in an attempt to retrieve her belongings, all of which were still in Page’s condominium. J.A. at 310-19, 338 (Scrivens Test, at 408-21, 440). Upon Scrivens’s arrival at Page’s condominium, Page pushed her down and dragged her away from the door when she attempted to • leave, and as the majority pointed out, evidence showed that he sprayed her with mace and then beat her with his fists, a claw hammer, and a pipe wrench over the course of several hours. See Maj. Op. at 483. Scrivens also testified that he used a stun gun during the assault. J.A. at 318-21 (Scrivens Test, at 420-23). After the beating, Page carried his victim, who was too weak to walk and who had fallen into unconsciousness several times during the attack, and placed her into his car under threat of further violence from his stun gun. .J.A. at 326 (Scrivens Test, at 428). Page then drove around for approximately four hours, crossing state lines into Pennsylvania and intentionally passing several local hospitals on the way even though Scrivens pleaded with him to stop for medical treatment at either Riverside or Ohio State University, two hospitals in the Columbus area. J.A. at 223-24, 324-26, 332 (Scrivens Test, at 167-68, 426-28, 434).

II. STATUTORY SCOPE

Page’s conduct, as presented to the jury, falls within the scope of the statutory language of 18 U.S.C. § 2261(a)(2) under at least two theories of liability. The evidence presented to the jury showed that he committed interstate domestic violence both: (1) when he beat his ex-girlfriend over the course of several hours with his fists, a claw hammer, and a pipe wrench and subdued her with mace and a stun gun enabling him to force her across state lines against her will in an attempt to evade the law, and (2) when he forced her to travel interstate under threat of violence, intentionally preventing her from obtaining medical treatment, thereby causing an aggravation of her pre-existing injuries.

A. “In the Course of’: Infliction of Bodily Injury Facilitating the Forcible Transportation of a Victim Across State Lines or the Use of Interstate Transportation to Conceal a Crime of Violence

Unlike the majority, I believe “in the course of ... that conduct” as used in 18 U.S.C. § 2261(a)(2) refers not merely to the victim’s narrow act of crossing state lines but more generally to the batterer’s conduct of causing his victim to cross state lines by force or coercion. ’ Not only is this the most *492logical reading of the statute grammatically, but the majority’s odd construction of 18 U.S.C. § 2261(a)(2) also makes little sense given the reality of the crime and the very reasons .why ■ Congress believed .federal involvement was necessary in this area that has traditionally been left to the states.

The crime of violence that took place inside Page’s condominium — the beating and the use of a stun gun and mace — is precisely what enabled Page to force Scrivens to undergo the travel across state lines. The beating subdued his victim, rendered her in no condition to resist him physically as she was being placed into his car, and frightened her so severely that she agreed not to make any “commotion” that might attract attention and aid from others once they got outside of his condominium. J.A. at 326 (Scrivens Test, at 428). The attack also allowed Page to retain control over Scrivens during the forcible transportation. Not surprisingly, a person who has just been beaten in the manner Scrivens had been is far less physically and emotionally capable of attempting an escape, formulating a method of escape, or eliciting aid from others. The beating was an integral part of the forcible transportation since it enabled Page to force Scrivens on an unwilling four-hour journey the destination of which was not revealed to Scrivens until much later. J.A. at 332, 337 (Scrivens Test, at 434, 439). Consequently, the beating that took place inside Page’s condominium clearly occurred “in the course of’ Page forcibly “causing” Scrivens “to cross State lines.”

Furthermore, evidence presented to the jury showed that Page removed Scrivens from the local area precisely because he feared the consequences of his having harmed her and knew that interstate travel would make it more difficult for police authorities to hold h'im liable for his crime. J.A. at 324-25 (Scrivens. Test, at 426-27). It is difficult to believe that Congress intended to exclude from this statute’s purview the beating of an intimate partner by a batterer who then forcibly transports his victim across state lines under threat of further violence in order to avoid detection from the law. What is ironic about the majority’s opinion is that the inadequacy of state law enforcement was one of the main reasons for which federal legislation dealing with domestic violence was thought to be necessary. The VAWA was intended to deal with those batterers who carry or force their intimate partners across state lines as part of a domestic violence incident in an attempt to conceal their crimes. See Abraham Abramovsky, Interstate Domestic Violence and Murder: Are They the Same?, N.Y. L.J., July 12, 1996, at 3. Those who enacted the VAWA’s interstate domestic violence provision recognized that batterers were using interstate travel as a loophole in the system of state law enforcement and that crimes of domestic violence “because of their interstate nature, transcend the abilities of State law enforcement agencies.” S.Rep. No. 103-138, at 42-43, 62 (1993) (VAWA of 1993). For example, when batterers take their victims across state lines, local authorities often encounter difficulties subpoenaing hospital documents and witnesses from other states. See Robert Ruth, Second Ohio Man Guilty in Federal Violence Cases, The Columbus Dispatch, Apr. 13, 1996, at 3B. The majority’s narrow perspective blinds it from the “bigger picture” — from seeing that this incident is precisely the type of situation for which a federal, domestic violence statute would be needed and which 18 U.S.C. § 2261(a)(2) was intended to cover.

While the majority discounts the suggestion that its interpretation would limit the reach of 18 U.S.C. § 2261(a)(2) to those rare situations where the batterer is driving with one hand while hitting his victim with the other, .the reality is that its interpretation reads a distinction into the statute that is not very logical in light of the nature of domestic violence crimes. Page’s crime of violence was committed as much “in the course” of forcing Scrivens across state lines as that of a man who beats his intimate partner while standing in the driveway with one foot in his car, or the man who beats his intimate partner while parked at various highway rest stops. The sad truth about domestic violence is that the batterers may well be intelligent people who appear to the rest of society to be upstanding, respectable citizens. At minimum, these batterers .are sufficiently intelligent to realize that their chances of being *493held liable for the abuse of an intimate partner are dramatically higher when they beat their intimate partners outside on the driveway in front of the neighbors or at rest stops populated twenty-four hours a day, rather than inside the home behind closed doors and drawn curtains. Congress very appropriately entitled Title II of the VAWA, the domestic violence section which contains, as a small part, the interstate domestic violence provision, “Safe Homes for Women.” S.Rep. No. 103-138, at 43 (1993) (VAWA of 1993) (emphasis added). One reason why our society has taken so long to accept domestic violence as a crime against society is the fact that it typically does not occur in public places among strangers, but in the privacy of one’s own home among intimate partners. See Kerrie E. Maloney, Gender-Motivated Violence and the Commerce Clause: The Civil Rights Provision of the Violence Against Women Act after Lopez, 96 Colum. L.Rev. 1876, 1886 & n.38 (1996). To assume that Congress intended to criminalize only those beatings occurring precisely during travel but not those occurring inside a home that enable the further violence of forcible interstate travel or that are concealed by use of interstate travel would be to suggest that Congress somehow missed the boat.

B. “In the Course of’: Aggravation of Injuries During Forcible Interstate Travel

I agree with the majority that forcibly taking an intimate partner whom the batterer has just severely beaten into unconsciousness across state lines thereby causing the aggravation of her injuries is a “crime of violence” causing “bodily injury” to that person in violation of 18 U.S.C. § 2261(a)(2).

The majority correctly points out that one commits a crime of violence not merely when one actually uses force, but also when one threatens the use of force. In the instant case, the government presented evidence that Page threatened the use of a stun gun against Scrivens’s person in order to obtain her cooperation in being transported across state lines. Page kept the stun gun in his pocket and made certain Scrivens knew he had easy access to it during the ride. J.A. at 326 (Scrivens Test, at 428). Moreover, while they traveled interstate, Page also threatened to push Scrivens out of the ear and to leave her on the side of the road where no one would ever find her. J.A. at 334 (Scrivens Test, at 436). This conduct is, without a doubt, an act of violence both as a matter of logic and as a matter of law.

As for what constitutes the causing of “bodily injury,” nowhere does the statute suggest that the bodily injury must be an injury newly inflicted, completely distinct from the prior criminal actions of the batterer. As recognized by the majority, such a limitation would make little sense. Under Judge Wellford’s interpretation, Page’s actions would not constitute a crime of interstate domestic violence even if Scrivens had bled to death or gone into shock during and as a result of1 the forcible transportation simply because the death or shock would not have been “separate” from Page’s prior criminal conduct towards Scrivens which occurred before transportation commenced. Yet, there is no relevant distinction between a person who forcibly prevents his intimate partner from obtaining medical care forcing her to bleed to death, a person who forcibly prevents his diabetic intimate partner from obtaining insulin shots forcing her to fall into a coma, and a man who forcibly prevents his intimate partner from obtaining food and water for several days forcing her to suffer renal failure. Any. prior criminal actions of any of these batterers should in no way weaken or negate the observation that these three situations are analogous and that in all of these scenarios the batterer has committed a crime of violence causing bodily harm.

*494We note as well that the seriousness of the bodily injury is not a proper basis for negating criminal liability under 18 U.S.C. § 2261(a)(2). Whether or not one is guilty of interstate domestic violence does not depend on the seriousness of the bodily harm suffered by the victim. The fact that the victim in United States v. Bailey, 112 F.3d 758 (4th Cir.1997), suffered permanent damage does not render Page any less culpable under 18 U.S.C. § 2261(a)(2). The statute clearly shows that the degree of harm inflicted on the victim is instead to be taken into account at the sentencing stage pursuant to 18 U.S.C. § 2261(b).2

III.CONSTITUTIONALITY

Because under either of the above interpretations of 18 U.S.C. § 2261(a)(2) the triggering factor is the movement of the victim across state lines, it is clear to me that this statute is a valid exercise of Congress’s power under the Commerce Clause to regulate the “use of the channels of interstate commerce.” 3 United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 1629, 131 L.Ed.2d 626 (1995) (describing the first category of activity Congress is empowered to regulate under the Commerce Clause). The Supreme Court, recently reiterated the well-settled principle that “the transportation of persons across state lines” is a “form of ‘commerce.’ ” Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, — U.S. -, —-, 117 S.Ct. 1590, 1596, 137 L.Ed.2d 852 (1997) (citing its prior decisions in Edwards v. California, 314 U.S. 160, 172, 62 S.Ct. 164, 166, 86 L.Ed. 119 (1941), and Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 196-97, 61 L.Ed. 442 (1917)). In Caminetti, the Court upheld the White Slave Traffic Act of 1910 under which the defendant had been convicted of transporting and causing to be transported a woman across state lines for the purpose of prostitution or debauchery and rejected the argument that the statute exceeded Congress’s powers under the Commerce Clause because the purpose of debauchery was unrelated to commerce. See id. at 484-85, 488 n. 1, 491, 37 S.Ct. at 194, 195 n. 1, 196-97. Title 18 U.S.C. § 2261(a)(2) is similarly constitutional under the Commerce Clause because the interstate domestic violence provision’s requirement of “the crossing of a state line ... plae[es] the [commission of a crime of violence causing bodily injury] squarely in interstate commerce.” Bailey, 112 F.3d at 766 (analogizing the commission of a crime of violence causing bodily injury to “the debauchery forbade in Cami-netti”). Any arguably intrastate nature or timing of the crime of violence is irrelevant, just as it was with respect to the prostitution/debauehery in Caminetti.

IV.JURY INSTRUCTIONS

Given my position that either Page’s beating of his ex-girlfriend before interstate travel or his subsequent acts of violence during interstate travel, as presented to the jury, could as a matter of law provide a sufficient basis for liability under 18 U.S.C. § 2261(a)(2), I see no error with the jury instructions and likewise no need to remand this case for a new trial.

V.CONCLUSION

I concur with the majority’s conclusion that 18 U.S.C. § 2261(a)(2) is a valid exercise of Congress’s powers under the Commerce Clause and as well with respect to Part V of the majoritys opinion relating to various evi-dentiary issues raised by the appellant. However, to the extent the majority rejects *495the view that 18 U.S.C. § 2261(a)(2) reaches those situations where a beating of an intimate partner is integrally related to the subsequent transportation of the victim across state lines by force and to the extent the majority feels it needs to remand this ease for a new trial, I respectfully dissent. I would affirm the district court’s decision not to overturn the jury’s guilty verdict.

. In addition to my disagreement with the majority regarding the interpretation of "in the course of” as discussed in the previous section, I must also object to how the majority equates the term "as a result of" with "after.” See Maj. Op. at 485. An event (X) that results from another (Y) does not necessarily need to follow it in the sense that the beginning of event X can precede the end of event Y, especially when event Y spans a lengthy period of time as interstate travel might. In other words, a crime of violence does not have to take place after the travel completely ends in order for one to say that the crime of violence was the result of the travel.

. Title 18 U.S.C. § 2261(b) specifically distinguishes between those situations in which the victim dies, those in which the victim suffers “permanent disfigurement or life threatening bodily injury,” those in which the victim sustains "serious bodily injury,” and ."any other case.”

. My analysis under the first Lopez category should in no way be interpreted as foreclosing either the second or third Lopez category as a valid basis for upholding the constitutionality of 18 U.S.C. § 2261(a)(2) under the Commerce Clause. See Lopez, 514 U.S. at 558-59, 115 S.Ct. at 1629-30 (concluding that Congress is "empowered [secondly] to regulate and protect ... persons or things in interstate commerce” and finally to regulate "those activities having a substantial relation to interstate commerce”). I have chosen to limit my discussion to this first category simply because this was the focus of the government's arguments on appeal. Appellee’s Br. at 14-15.