dissenting in the order.
I agree with that part of Judge Moore’s opinion that concludes Congress validly enacted the Violence Against Women Act under its commerce power. I cannot agree, however, that the Act criminalizes Page’s pre-travel violence in this case and his conviction should be reversed.
Preceded by a descriptive caption, one sentence containing four separate elements defines the federal domestic violence crime in question:
Causing the crossing of a State line.— A person who [1] causes a spouse or intimate partner to cross a State line or to enter or leave Indian country by force, coercion, duress, or fraud [2] and, in the course or as a result of that conduct, [3] intentionally commits a crime of violence [4] and thereby causes bodily injury to the person’s spouse or intimate partner, shall be punished as provided in subsection (b).
18 U.S.C. § 2261(a)(2) (Emphasis and numbering added).
A literal or precise reading of the words of the sentence, and the sequence of elements described there, requires me to find that Page should not be punished under this statute for the criminal assault that occurred before he began to cause Scrivens to cross a state line. That result is necessary because an offender is covered by the statute only if he “causes” the victim “to cross a state line” by force, coercion, duress, or fraud, and “causes bodily injury” to the victim “in the course ... of that conduct;” that conduct of causing the victim “to cross a state line” by force, coercion, duress, or fraud. The literal meaning of the words does not allow punishment of a man who beats a woman before the journey begins unless of course his purpose in inflicting bodily injury is to cause her to cross states lines. The provision therefore criminalizes an act of domestic violence that occurs before interstate travel actually begins only if the violence is the same “force” that the attacker employs to cause his victim to cross state lines against her will and the attacker’s purpose at the time he inflicts the injury is to transport his victim across state lines.
The construction I have described above appears to be the obvious meaning of the statute. In criminal law, we should not strain to give a broad construction to a penal statute. For centuries in Anglo-American law, the rule of lenity has required a strict construction of criminal statutes. United States v. Lanier, 520 U.S. 259, -, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (“[T]he canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered”). United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 93-96, 5 L.Ed. 37 (1820) (opinion by Chief Justice Marshall). As Judge Merritt explained in the original panel’s opinion in this case, “[w]e must enforce the statute according to the words that Congress actually adopted and not according to our own view of what might be a better or more comprehensive statutory policy on domestic violence against women.” United States v. Page, 136 F.3d 481, 484 (6th Cir.1998).
Judge Moore concludes that because Seri-vens was completely incapacitated by the *337attack, she was under Page’s control continuously from the time she entered the condominium until she crossed state lines, and that this somehow permitted the jury to find that the injuries she suffered in the attack in the condominium were inflicted in the course of causing her to cross state lines.!1] While I agree that injuries inflicted before any travel begins can be found to be a part of “that conduct” if inflicted to cause the victim to cross state lines, there is no evidence here that such intent caused any of the injuries Scrivens sustained before she was placed in the car.
Were the evidence in this case such that the jury could conclude that the seventy of the attack was to enable Page to take Scri-vens across state lines to a distant hospital, then I could agree that conduct was covered by the statute. But the record does not support a finding that the attack in the condominium had such a purpose. As Judge Moore acknowledges: “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 him liable for his crime.”
If there were some evidence that any of the particular injuries inflicted on Scrivens were inflicted not merely to prevent her escape from the condominium, but specifically in order to make it easier to transport her across state lines, a juror could find that defendant’s effort to cause her to cross state lines had begun. I could then agree that Page’s attack is covered by the statute. While causing someone to cross state lines encompasses broader conduct than simply traveling across state lines, still there must be some evidence from which the jury could find the connection between the earlier violence and “causing” the victim to travel. More important, even were we to accept Judge Moore’s reading of the statute, the jury was never instructed that the injuries had to be inflicted as a part of causing her travel. The government’s closing argument that it was all the “same course of conduct” is not a substitute for a proper instruction.
In sum, the plain language of section 2261(a)(2) shows that Congress did not intend the statute to apply to those attacks where, after the fact, the defendant decides to use interstate travel to conceal his wrongdoing. By no means do I suggest that Congress should not have criminalized such conduct. Indeed, the particularly disturbing facts of cases such as Page and United States v. Bailey suggest that it would not have been illogical to criminalize flight across state lines to avoid apprehension.[2] As enacted by Congress, however, the Act requires the attacker to intend to cause interstate travel. The provision at issue applies to situations where “force, coercion, duress or fraud” on the part of the defendant triggers the interstate travel, and then sometime in the course or as a result of causing the victim to travel, the defendant commits a crime of violence and inflicts bodily injury on the victim. Sad*338ly, Congress simply did not draft the statute to cover the situation in which an attacker first beats an intimate partner, and only later develops the intent to transport her across state lines in order to hamstring law enforcement efforts or conceal evidence. If Congress intends to criminalize such conduct, Congress should state so clearly. Accordingly, I would reverse the judgment and the conviction.
I agree with Judge Moore that the evidence would permit the jury to find that the further injuries Scrivens suffered while the defendant was causing her to cross state lines would sustain a guilty verdict. However, the case was neither argued to the jury nor submitted on instructions on that theory.!3] I would, therefore remand the case for a new trial on that theory.
. Judge Moore appears to be including in "that conduct" any continuous control that is followed by the crossing of a state line without regard to the defendant’s intent.
. Only two other prosecutions arising under § 2261(a)(2) have reached the courts of appeal to date: United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied, - U.S. -, 118 S.Ct. 240, 139 L.Ed.2d 170 (1997), and United States v. Hornsby, 88 F.3d 336 (5th Cir.1996). In both Bailey and Hornsby, as in this case, the defendant brutally beat his victim first (without any obvious present intent to transport her across state lines) and then after she was subdued, put her in a car and transported her across state lines. Neither defendant specifically challenged the application of § 2261(a)(2) to pre-travel violence.
The defendant’s evasive behavior in Bailey was particularly egregious. The defendant attacked his wife in their bedroom, inflicting head injuries and causing her to lose a significant amount of blood. After letting her lie there for “an extended period,” he locked her in the trunk of the car and drove her back and forth between West Virginia and Kentucky over the next six days. He decided "not to take her to a hospital, but rather to 'avoid publicity and to treat her himself.’" Bailey, 112 F.3d at 762. Her condition became "desperate" and Bailey realized he needed to take her to the hospital. By the time she arrived, many of Mrs. Bailey's injuries were permanent. The doctor testified that she will likely never walk again, but with years of rehabilitation she might learn to feed herself and to talk. Id. at 763-64.
. The following are the totality of the court’s instruction on the elements of the domestic violence charge.
One, that Carla Elena Scrivens was the spouse or intimate partner of the defendant Derek Duane Page;
Two, the defendant Derek Duane Page caused Carla Elena Scrivens to cross a state line by force, coercion, duress or fraud;
Three, that in the course of or as a result of that conduct the defendant Derek Duane Page intentionally committed a crime of violence;
And, fourth, thereby caused Carla Elena Scrivens to suffer bodily injury.
* * *
Similarly, count two of the indictment reads in the disjunctive in that it charges that the defendant Derek Duane Page did cause his intimate partner Carla Elena Scrivens to cross a state line from Ohio to West Virginia and from West Virginia to Pennsylvania and elsewhere by force, coercion, duress or fraud.
It is not necessary to prove beyond a reasonable doubt that defendant Derek Duane Page used all of these methods to cause Carla Elena Scrivens to cross a state line. Rather, you need only find beyond a reasonable doubt that defendant Derek Duane Page intentionally used one of these methods; for example, by force, coercion, duress or fraud.
At no place in the instructions did the court explain the meaning of "that conduct.”
The government argued only as follows:
The language "in the course of this conduct” or "in relation to the conduct” doesn’t matter if the beating occurred first or the beating occurred last or if he pushed her out on the way. The fact is it was in the same course of conduct. It happened the same night by the same person with the same victim, and that’s the meaning of the statute.