Legal Research AI

United States v. Nason

Court: Court of Appeals for the First Circuit
Date filed: 2001-10-19
Citations: 269 F.3d 10
Copy Citations
61 Citing Cases
Combined Opinion
          United States Court of Appeals
                      For the First Circuit


No. 01-1440

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      ROBERT E. NASON, JR.,

                      Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

         [Hon. George Z. Singal, U.S. District Judge]


                              Before

                       Selya, Circuit Judge,

                   Stahl, Senior Circuit Judge,

              and Doumar,* Senior District Judge.


     Joseph M. Baldacci for appellant.
     F. Mark Terison, Senior Litigation Counsel, with whom Paula
D. Silsby, United States Attorney, was on brief, for appellee.




                         October 19, 2001



________________
*Of the Eastern District of Virginia, sitting by designation.
            SELYA, Circuit Judge.           This appeal requires us to

resolve an interpretive schism that has divided the district

courts.     This schism involves the interplay between a state

assault statute and a federal law barring misdemeanants who have

committed crimes of domestic violence from possessing firearms.

The crux of the controversy is whether "offensive physical

contact," one of the two variants of assault featured in Maine's

general-purpose assault statute, necessarily involves the use or

attempted use of physical force.           If so, prior convictions under

that statute can qualify as predicate offenses for purposes of

the federal statute prohibiting persons previously convicted of

misdemeanor crimes of domestic violence from possessing firearms

(18 U.S.C. § 922(g)(9)).          If not, such misdemeanants — at least

those     whose   convictions      are   not   readily   identifiable   as

involving more than offensive physical contact — may well escape

the strictures of the federal law.

            Based   upon    our    construal    and   reconciliation,   we

conclude that Congress intended the federal law to cover all

persons who have been convicted of assaulting domestic partners

in circumstances similar to those delineated by both strains of

the Maine statute.         Accordingly, we affirm the conviction and

sentence imposed in the case at hand.

I.   BACKGROUND


                                     -3-
           On July 6, 1998, authorities in Somerset County, Maine,

lodged a state criminal complaint against Robert Nason, Jr., the

appellant here, alleging that he "did intentionally, knowingly,

or recklessly cause bodily injury or offensive physical contact

to one Beth Nason [his wife]," in violation of Maine's general-

purpose assault statute, Me. Rev. Stat. Ann. tit. 17-A, § 207.

Pertinently, that statute provides (as it has since 1975) that

a person can be guilty of misdemeanor assault in one of two

ways, namely, (1) "if he intentionally, knowingly, or recklessly

causes   bodily   injury   .   .    .    to    another,"     or   (2)   "if   he

intentionally, knowingly, or recklessly causes . . . offensive

physical contact to another."           Id. § 207(1).   The appellant pled

guilty to a charge that made no differentiation between these

two variants.     He received a three-day jail sentence.

           On January 18, 2000, the appellant pawned a rifle at

the Norridgewock trading post.                Nearly one month later, he

redeemed   it.    When   thereafter        questioned   by    a   Maine   state

trooper, the appellant exhibited the rifle and admitted that he

previously had pawned it.          He also showed the trooper a cache

consisting of five additional firearms.




                                     -4-
          In    due   course,   a    federal    grand    jury     charged   the

appellant with violating 18 U.S.C. § 922(g)(9).1                The indictment

alleged in substance that the appellant, having been convicted

of a misdemeanor crime of domestic violence (the Somerset County

assault conviction), thereafter knowingly possessed a firearm

(the rifle).      The appellant pled guilty to this charge before

Judge   Singal,    but,    before    the    imposition     of    sentence,    a

different district judge handed down an opinion that cast doubt

upon the validity of the charge.           See United States v. Southers,

No. 00-83, slip op. (D. Me. Jan. 3, 2001).                  We recount the

circumstances of that case.

          Southers had entered a plea of nolo contendere to a

criminal complaint charging him with violating Maine's general-

purpose   assault     statute   by     "intentionally,          knowingly    or

recklessly     caus[ing]    bodily    injury     or     offensive    physical

contact" to a domestic partner (in Southers's case, a live-in

girlfriend).      Federal authorities thereafter charged him with

violating 18 U.S.C. § 922(g)(9).           Southers moved to dismiss the


    1The statute bans any person "who has been convicted in any
court of a misdemeanor crime of domestic violence [from
possessing], in or affecting commerce, any firearm or
ammunition," 18 U.S.C. § 922(g)(9), and provides criminal
penalties for any violation.    As we shall see, misdemeanor
crimes of domestic violence have two essential elements: the
mode of aggression and the domestic relationship between
malfeasant and the victim. This appeal focuses on a specific
mode of aggression.

                                     -5-
federal indictment.       Judge Hornby reasoned that the mode of

aggression component of section 922(g)(9) necessitated the use

or   attempted     use    of   physical     force;     that    Southers's

undifferentiated assault conviction may have involved offensive

physical contact rather than bodily injury; that the section of

Maine's disjunctive general-purpose assault statute covering

"offensive physical contact" did not categorically presuppose

the use of physical force; and that, even if the particular

assault complaint lodged against Southers contained language

sufficient to support a finding that physical force had been

used,    such   force   nonetheless   was   not   a   formal   element   of

offensive physical contact under the Maine statute.                  These

rulings collectively undermined the government's argument that

all persons convicted of assaults on domestic partners under

Maine's    general-purpose     assault      statute    necessarily       had

committed misdemeanor crimes of domestic violence within the

purview of 18 U.S.C. § 922(g)(9).           Accordingly, Judge Hornby

dismissed the indictment.2




     2We consolidated the government's appeal in Southers for
oral argument with this appeal and several other appeals
featuring identical (or nearly identical) issues of statutory
interpretation. The panel anticipates that this opinion will
serve as a bellwether, and that separate opinions will be issued
to dispose of the other cases (including Southers).

                                  -6-
              Emboldened by the        Southers decision, the appellant

moved    to   withdraw   his    guilty   plea   and    dismiss    the    federal

indictment.       Judge Singal declined to follow           Southers.        See

United States v. Nason, No. 00-CR-37, slip op. (D. Me. Feb. 13,

2001).     The judge concluded that physical force was a sine qua

non of assault under both variants of Maine's general-purpose

assault statute; that the statute, in all its applications,

entailed      physical   force    as     a   formal    element;    and     that,

therefore,      all   persons    convicted      of    assaults    on    domestic

partners under the statute necessarily had committed misdemeanor

crimes of domestic violence within the purview of 18 U.S.C. §

922(g)(9).

              Refined to bare essence, this appeal questions whether

both forms of assault covered by Maine's disjunctive general-

purpose assault statute (bodily injury and offensive physical

contact) necessarily include physical force as a formal element

(and, therefore, suffice to ground charges under the federal

misdemeanant-in-possession statute).             To resolve this question,

we first erect a decisional framework (Part II).                        We then

undertake an exegesis of the relevant state and federal statutes

(Part III) and reconcile them (Part IV).               Finally, we consider

the appellant's vagueness claim (Part V), and then conclude

(Part VI).


                                       -7-
II.   THE DECISIONAL FRAMEWORK

            The   diametrically     opposite       conclusions       reached    by

respected trial judges about how best to synthesize the relevant

statutes stem from a fundamental disagreement concerning the

appropriate decisional framework.                 One view, shared by the

Southers court and the appellant, advocates an application of

the categorical mode of analysis set forth in Taylor v. United

States, 495 U.S. 575, 599-602 (1990).             The other view, shared by

the Nason court and the government, eschews Taylor's categorical

approach in favor of an examination of the formal definitions of

the pertinent state and federal statutes.                 Since this discord

centers on Taylor's applicability to this kind of dispute, an

examination of Taylor and its progeny represents a logical

starting point.

            In Taylor, the Supreme Court interpreted provisions of

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a

statute    designed   to   ensure    that    certain      "career"    criminals

receive enhanced sentences.         Asked to determine whether burglary

was   a   predicate   offense   under       the   ACCA,    the   Taylor    Court

concluded that Congress had intended to promulgate a generic,

contemporary definition of burglary.                495 U.S.     at 598.       The

Court supported its conclusion by pointing out that the ACCA's

sentence-enhancement provision embodied a "categorical approach"


                                     -8-
to the designation of predicate offenses.                  Id. at 588-89.      Using

this "categorical approach," the Court held that an offense was

equivalent      to   burglary      "if    either   its    statutory       definition

substantially corresponds to 'generic' burglary, or the charging

paper and jury instructions actually required the jury to find

all the elements of generic burglary in order to convict the

defendant."      Id. at 602.

            We previously have considered the applicability of

Taylor's categorical approach to the federal statutes at issue

here.    In that case, we addressed, inter alia, the defendant's

assertion       that      his   prior       conviction       under    a     general

Massachusetts assault and battery statute failed to comprise a

"misdemeanor crime of domestic violence" within the meaning of

18 U.S.C. § 922(g)(9).             United States v. Meade, 175 F.3d 215,

218-21   (1st    Cir.     1999).         Through   an    exercise    in    statutory

construction,        we    resolved       the   defendant's      argument       that

predicate misdemeanors underlying section 922(g)(9) violations

needed to include relationship status as an element within their

formal definitions.         See id.       Focusing on the federal statute's

plain language, we held that the mode of aggression was a sine

qua non of the predicate offense's formal statutory definition,

but that relationship status was not.                   Id. at 219.




                                          -9-
            Importantly,     in    Meade     we   rejected   the     defendant's

contention    that   Taylor       required    a   federal    court    to   plunge

headlong into a categorical analysis whenever it was called upon

to construe a statute or sentencing guideline that incorporated

the concept of a predicate offense.               We explained that:

            Before engaging in a categorical approach,
            one first must have established the formal
            definition of the particular predicate
            offense, a process that necessarily requires
            determining the requisite elements of the
            statute of conviction.      The appellant's
            attempt to establish the formal definition
            of   a  "misdemeanor   crime   of   domestic
            violence" by direct resort to a categorical
            approach thus puts the cart before the
            horse.

Id. at 221; see also United States v. Shepard, 231 F.3d 56, 64

n.8 (1st Cir. 2000) (stating that Taylor's categorical approach

does not "extend so far as to prevent courts from establishing

the elements of the statute of conviction").

            Meade clearly marks the analytical path that we must

traverse.    Under it, our first step is to establish the formal

definitions of the relevant statutes by perusing the underlying

statutory elements.     Because we can dispose of the controversy

at hand based solely upon these formal statutory definitions,

any   further   inquiries,    Taylor-based         or   otherwise,     would   be

superfluous.




                                     -10-
            Even though our chosen methodology is not predicated

upon the analytic model for which Taylor has become famous, it

is   implicitly    supported   by   the    Taylor   Court's   sequence   of

inquiries.     The Taylor Court's first order of business was to

decipher the meaning of the relevant statutory language — a

process     that   included    a    detailed    review   of   the   ACCA's

legislative history.      495 U.S. at 580-99.          Only after it had

established the requisite elements of burglary did the Court

proceed to a posterior issue:               identifying the appropriate

framework for judicial review of prior convictions as predicate

offenses for sentence-enhancement purposes.           Id. at 599-602.    In

this context, Taylor restricted sentencing courts principally to

an examination of the "statutory definitions" of prior offenses.

Id. at 600, 602.     Indeed, the Court's four separate uses of the

locution "statutory definition" underscore the importance of

fleshing out the legislature's definition of a crime before

conducting any further analysis.

            The inherent logic of this sequencing of inquiries is

evident if one considers the analytical problems that would

arise if they were reversed.         In point of fact, engaging in any

mode   of    analysis   without     first    establishing     a   statutory

definition would be like administering a Rorschach test without




                                    -11-
any    inkblots.       Accordingly,    our   inquiry      must   begin    with   a

conventional exercise in statutory construction.3

III.       PARSING THE STATUTES

              Having erected the appropriate analytical framework,

we    now    explore   the   ramifications    of    the   federal   and    state

statutes germane to this controversy.              The task of interpreting

and reconciling these statutes presents abstract legal questions

engendering de novo review.           See Rhode Island v. Narragansett

Indian Tribe, 19 F.3d 685, 691 (1st Cir. 1994).

                        A.    The Federal Statutes.

              The case at bar involves two interrelated federal

statutes.      The grand jury indicted the appellant under 18 U.S.C.

§ 922(g)(9), quoted supra note 1, and the incorporated term

"misdemeanor crime of domestic violence" is defined elsewhere

as:

              an offense that —

              (i) is a misdemeanor under Federal or State
              law; and


       3
      We note that this case differs from Taylor in that it deals
with the examination of a predicate offense (a misdemeanor crime
of domestic violence) that constitutes a formal element of the
charged crime, whereas Taylor deals with the examination of
predicate offenses to determine the applicability of provisions
mandating enhanced sentences. Be that as it may, we need not
determine at this juncture whether it ever may be suitable to
apply Taylor's categorical approach to a predicate offense that
constitutes an essential element of a federal criminal
violation.

                                      -12-
          (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 guardian, or by a person
          similarly situated to a spouse, parent, or
          guardian of the victim.

18 U.S.C. § 921(a)(33)(A).        Reading these statutes together, the

proscriptions       contained   in   section       922(g)(9)     extend    to    any

person who has been convicted under state law of a misdemeanor

crime that (1) contains as an element the use or attempted use

of physical force and (2) involves an enumerated relationship

status between perpetrator and victim.                 We previously have held,

and today reaffirm, that the use or attempted use of physical

force constitutes an essential, and formal, element of a section

922(g)(9) predicate offense.            See Meade, 175 F.3d at 218-21.

Thus, the case at bar requires us to determine whether Congress,

by   codifying      physical    force   as    a    formal      element    of    such

predicate offenses, intended to reach misdemeanants convicted

under either branch of Maine's general-purpose assault statute.

          To     resolve   this      issue,       we    turn   to   time-honored

principles     of     statutory      construction.             Where     statutory

interpretation is in prospect, the jumping-off point always is

the text of the statute itself.              United States v. James, 478


                                      -13-
U.S. 597, 604 (1986); United States v. Charles George Trucking

Co., 823 F.2d 685, 688 (1st Cir. 1987).            In scrutinizing the

language, we presume, absent evidence to the contrary, that

Congress knew and adopted the widely accepted legal definitions

of meanings associated with the specific words enshrined in the

statute.    Morissette v. United States, 342 U.S. 246, 263 (1952);

United Techs. Corp. v. Browning-Ferris Indus., 33 F.3d 96, 99

(1st Cir. 1994).    Predictably, we turn to Black's Law Dictionary

to glean the most widely accepted legal meaning of "physical

force."

            This venerable reference work defines "physical force"

as "force consisting in a physical act."         Black's Law Dict. (7th

ed. 1999) (cross-referencing the definition of "actual force").

The word "force" means "[p]ower, violence, or pressure directed

against a person or thing."      Id.      The word "physical," although

not separately defined in Black's, has a corporeal aspect.              See

American Heritage Dict. of the Eng. Language (4th ed. 2000)

(defining    "physical"   as   "of   or    relating   to   the   body    as

distinguished from the mind or spirit"); Webster's Ninth New

Collegiate Dict. (1989) (defining "physical" as "of or relating

to the body").     Synthesizing the various definitions, physical

force may be characterized as power, violence, or pressure

directed against another person's body.


                                 -14-
            If statutory language points to a plain and unambiguous

meaning, courts are bound to follow that signpost — at least as

long   as   that    revealed      meaning       is   neither   unreasonable       nor

absurd.     Salinas v. United States, 522 U.S. 52, 57-58 (1997);

Charles George Trucking, 823 F.2d at 688.                      In the context of

section 921(a)(33)(A), the phrase "use or attempted use of

physical force" falls into this category.                   Physical force is an

elementary concept, readily understood.                      And from a policy

perspective, proscribing gun possession by individuals convicted

of   misdemeanor      crimes      characterized        by   the   application     of

physical force advances Congress's evident purpose — curbing the

escalating societal problems associated with domestic violence.

Meade, 175 F.3d at 217.

            Since     the    straightforward          employment    of   the   term

"physical force" in section 921(a)(33)(A) produces an entirely

plausible result, we are not obligated to consult other aids to

statutory construction.           Salinas, 522 U.S. at 57-58; Meade, 175

F.3d at 219.       We nonetheless mention two additional facts that

confirm     the    absence   of    any    congressional        intent    either   to

engraft a bodily injury requirement onto section 921(a)(33)(A)

or otherwise to inspire a grudging construction of the words

"physical force" as used in that statute.




                                         -15-
          The     subsection    immediately      preceding      18    U.S.C.    §

922(g)(9) precludes the "use, attempted use, or threatened use

of physical force . . . that would reasonably be expected to

cause bodily injury."          18 U.S.C. § 922(g)(8)(C)(ii).                 This

qualifying clause limits the reach of section 922(g)(8) to a

specific subset of physical force:              physical force that is

reasonably expected to generate physical injury.               Following the

"settled rule that a statute must, if possible, be construed in

such fashion that every word has some operative effect," United

States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992), the

modifying clause in section 922(g)(8) cannot be dismissed as

mere surplusage.     This means that we must read the unqualified

use of the term "physical force" in section 922(g)(9) as a clear

signal of Congress's intent that section 922(g)(9) encompass

misdemeanor     crimes   involving      all   types    of    physical   force,

regardless of whether they could reasonably be expected to cause

bodily   injury.     After     all,    when   Congress      inserts   limiting

language in one section of a statute but abjures that language

in another, closely related section, the usual presumption is

that   Congress    acted    deliberately      and     purposefully      in    the

disparate omission.        Duncan v. Walker, 121 S. Ct. 2120, 2124-25

(2001); Russello v. United States, 464 U.S. 16, 23 (1983).




                                      -16-
            The legislative history of section 922(g)(9) further

suggests    that   Congress   did   not    intend   to   import   an   injury

requirement into section 922(g)(9).            On this point, we find

particularly instructive the comments of Senator Lautenberg (the

statute's principal architect). Discussing section 922(g)(9) on

the Senate floor shortly before its passage, Senator Lautenberg

observed:

            [T]he revised language includes a new
            definition of the crimes for which the gun
            ban will be imposed.     Under the original
            version, these were defined as crimes of
            violence   against   certain    individuals,
            essentially family members.     Some argued
            that the term crime of violence was too
            broad, and could be interpreted to include
            an act such as cutting up a credit card with
            a pair of scissors. Although this concern
            seemed far-fetched to me, I did agree to a
            new definition of covered crimes that is
            more precise, and probably broader.
                   Under the final agreement, the ban
            applies to crimes that have, as an element,
            the use or attempted use of physical force,
            or the threatened use of a deadly weapon.
            This is an improvement over the earlier
            version, which did not explicitly include
            within the ban crimes involving an attempt
            to use force, or the threatened use of a
            weapon, if such an attempt or threat did not
            also involve actual physical violence.

142 Cong. Rec. S11,877 (1996) (statement of Sen. Lautenberg).

            While the remarks of the chief sponsor of a bill by no

means control a court's construal of the enacted statute, they

nonetheless can provide reliable insights into its construction.


                                    -17-
N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27 (1982);

Meade, 175 F.3d at 219.             Here, the specificity of the comments,

precisely directed toward the intended meaning of the statute's

mode of aggression component, lends substantial credence to

them.      See   Regan    v.       Wald,   468    U.S.    222,     237    (1984).      We

conclude, therefore, that Senator Lautenberg's statements, which

plainly indicate that a principal purpose underlying Congress's

substitution of "crimes involving the use or attempted use of

physical force" for "crimes of violence" in section 922(g)(9)

was to broaden the spectrum of predicate offenses covered by the

statute, are worthy of respect.

            In    context,         these   insights      are     quite    helpful.      A

comparison of the plain meanings of "crimes of violence" and

"physical force" highlights the consonance between the purpose

and effect of the revised language.                  "Violence" is essentially

a subset of physical force involving injury or risk of harm.

See   Webster's     Ninth      New     Collegiate        Dict.    (1989)     (defining

violence as the "exertion of physical force so as to injure or

abuse");    see    also       18    U.S.C.    §    924(e)(2)(B)(ii)          (defining

"violent    felony"      to    include      crimes    involving          "conduct    that

presents    a    serious       potential      risk       of    physical     injury     to

another").        The    substitution         of     "physical      force"     as     the

operative mode of aggression element effectively expanded the


                                           -18-
coverage of section 922(g)(9) to include predicate offenses

whose formal statutory definitions contemplated the use of any

physical force, regardless of whether that force resulted in

bodily injury or risk of harm.

           To summarize, the usual and customary meaning of the

phrase "physical force" persuades us that Congress intended

section   922(g)(9)      to   encompass     crimes    characterized       by   the

application of any physical force.              The additional signposts

point unerringly in the same direction.                    Accordingly, we use

this as the operative definition.

                    B.     The Maine Assault Statute.

           The     grand    jury   denominated       the    appellant's    prior

conviction under the Maine general-purpose assault statute as

the predicate offense underlying the violation of 18 U.S.C. §

922(g)(9).       As previously stated, the Maine statute provides

that "[a] person is guilty of assault if he intentionally,

knowingly,   or    recklessly      causes   bodily     injury    or   offensive

physical contact to another."          Me. Rev. Stat. Ann. tit. 17-A, §

207(1).    Based upon the statute's disjunctive structure, either

bodily    injury    or   offensive    physical       contact    constitutes      a

sufficient actus reus.        In the pages that follow, we explore the

scope of these two varieties of assault, according "respectful

consideration and great weight" to the views of Maine's highest


                                     -19-
court.    Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100

(1938).

          1.     Bodily Injury.     Parsing the bodily injury variant

of assault is a straightforward task.             Maine's criminal code

defines bodily injury as "physical pain, physical illness or an

impairment of physical condition."         Me. Rev. Stat. Ann. tit. 17-

A, § 2(5).     The Supreme Judicial Court of Maine (the Law Court)

has imported this definition of bodily injury into Maine's

general-purpose assault statute.          See State v. Griffin, 459 A.2d

1086, 1091 (Me. 1983); State v. Carmichael, 405 A.2d 732, 735

(Me. 1979).      Thus, the latter statute, under the bodily injury

variant, proscribes acts that cause physical pain, physical

illness, or impairments of physical condition.

          2.      Offensive Physical Contact.        The definition of

"offensive physical contact," as used in Maine's general-purpose

assault statute, is more elusive.           Maine's criminal code does

not explicate the phrase.          There is, however, pertinent case

law, which arises in two contexts:         lesser included offenses and

jury instructions.     We examine those precedents.

          In State v.     Rembert, 658 A.2d 656 (Me. 1995), the

defendant appealed from a robbery conviction premised upon a

statute   that    included,   as   a   required   element,   the   use   of




                                   -20-
physical force.4 The defendant maintained that it was impossible

to   commit     robbery    involving      physical     force     without   also

committing      criminal      assault     involving    offensive       physical

contact.      The state attempted to distinguish the two on the

ground that robbery involving physical force did not necessarily

entail any bodily contact between robber and victim, whereas

assault involving offensive physical contact required a direct

touching of the victim.             Id. at 657-58.          In rejecting the

state's argument, the Law Court subscribed to the Restatement

position, see Restatement (Second) of Torts § 18 cmt. c (1965),

originally      formulated     in   the      context   of    civil     battery.

Accordingly, the Law Court held that offensive physical contact

was not limited to direct touchings, but also could 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").

Rembert, 658 A.2d at 658.           Since the use of physical force on


     4The statute of conviction provided in pertinent part:

           1.   A person is guilty of robbery if he
           commits or attempts to commit theft and at
           the time of his actions:

                           *      *    *
                  C.   He uses physical force               on
                  another . . . .

Me. Rev. Stat. Ann. tit. 17-A, § 651(1)(C).

                                     -21-
another necessarily involved some type of offensive physical

contact, assault was a lesser included offense of robbery.                 Id.

            Contrary to the government's importuning, Rembert's

conclusion that the use of physical force invariably involves

some type of offensive physical contact does not definitively

establish the converse proposition:               that offensive physical

contact necessarily entails the use of physical force.                 Rather,

Rembert   leaves    open   two   possibilities:          offensive   physical

contacts may categorically entail the use of physical force, or,

alternatively, offensive physical contacts characterized by the

use of physical force may represent a subset of a broader

universe of offensive physical contacts.                 We shall return to,

and resolve, this question in Part IV, infra.

            In    determining    the    scope     of   "offensive    physical

contact,"    as   that   term    is   used   in   Maine's    general-purpose

assault statute, we also derive enlightenment from                   State v.

Pozzuoli, 693 A.2d 745 (Me. 1997).                There, the defendant was

convicted on a charge of assault (an offense which, as we have

explained, may consist of offensive physical contact).                 The Law

Court   approved     a   jury    instruction      that    defined    offensive

physical contact as:

            [K]nowingly intending bodily contact or
            unlawful touching done in such a manner as
            would reasonably be expected to violate the
            person or dignity of the victim.

                                      -22-
                  It's something less than bodily injury
           . . . but requires more than a mere touching
           of another. And basically it's a question
           of was the contact under the circumstances
           such that a reasonable person would find it
           to be offensive.
                  You may consider what a reasonable
           person    might     consider     under    the
           circumstances to be offensive . . . .

Id. at 747.

           For present purposes, the lesson to be learned from

this approved instruction is that offensive physical contact

entails "something less than bodily injury . . . but requires

more than a mere touching of another."       The first part of this

definition reiterates the Law Court's view that the presence or

absence of bodily injury distinguishes the two variants of

assault    contemplated   under   Maine's   general-purpose   assault

statute.    See Carmichael, 405 A.2d at 735 ("We view section 207

as specifying two independent types of simple assault, one where

bodily injury results and another where there is merely an

offensive physical contact without resulting bodily injury.").

The second part of the definition emphasizes that not every

physical contact is actionable under the general-purpose assault

statute.    Two factors distinguish mere touchings from offensive

physical contacts:    the mens rea requirement, Me. Rev. Stat.

Ann. tit. 17-A, § 207(1), and the application of a "reasonable

person" standard to determine whether a contact is offensive,


                                  -23-
see Pozzuoli, 693 A.2d at 747-48; see also Restatement (Second)

of Torts § 19 ("A bodily contact is offensive if it offends a

reasonable person's sense of dignity.").

IV.   RECONCILING THE STATUTES

            The key distinction between the federal and state

statutes is one of perspective:              the physical force rubric

employed in the federal statutes focuses on the assailant's

conduct (i.e., whether the assailant directed physical force

against the victim), whereas both variants of the Maine general-

purpose assault statute focus on the victim's circumstances

(i.e., whether the victim endured either bodily injury or an

offensive    physical    contact).         But   the    fact     that    the    two

statutory    schemes     examine     the     same      act     from     divergent

perspectives does not mean that they are irreconcilable.                        The

decisive question is whether both bodily injury and offensive

physical    contact     assaults   necessarily         involve    the     use    of




                                   -24-
physical force.5        We conduct this inquiry separately for each

type of assault.



                            A.    Bodily Injury.

           The breadth of conduct covered by the bodily injury

branch     of     the     Maine    general-purpose        assault    statute

unambiguously involves the use of physical force.               In pertinent

part,    the    statute   criminalizes      the   "use   of   unlawful   force

against another causing bodily injury."              Griffin, 459 A.2d at

1091.    In turn, all three types of bodily injury specified by

Maine's criminal code (pain, illness, and impairment) contain

the same adjectival modifier:         "physical."        Me. Rev. Stat. Ann.

tit. 17-A, § 2(5).        Common sense supplies the missing piece of

the puzzle:      to cause physical injury, force necessarily must be

physical in nature.         Accordingly, physical force is a formal

element of assault under the bodily injury branch of the Maine

statute.


    5At oral argument, counsel for various defendants, see supra
note 2, devised a number of intricate examples in an effort to
test the limits of the government's suggested answer to this
query.   In performing our analysis, however, we eschew such
exotic exemplars and limit our probing to actual cases that have
been adjudicated by the Law Court. This is consistent with the
Law Court's steadfast refusal to rule upon hypothetical
scenarios. See, e.g., Connors v. Int'l Harvester Credit Corp.,
447 A.2d 822, 824 (Me. 1982) (emphasizing that "rights must be
declared upon the existing state of facts and not upon a state
of facts that may or may not arise in the future").

                                     -25-
                  B.     Offensive Physical Contact.

          This leaves the question whether offensive physical

contact   under        Maine's   general-purpose     assault   statute

necessarily involves the use of physical force.            For ease in

analysis, we divide this type of contact into two groupings:

(1) contacts with another person's body, and (2) contacts with

objects intimately connected with another person's body.

          Our assessment of offensive physical contacts with

another person's body follows the same lines as our assessment

of bodily injury assaults.       As the court below perspicaciously

observed, contacts of this sort invariably emanate from the

application of some quantum of physical force, that is, physical

pressure exerted against a victim.          Nason, slip op. at 6.

Therefore, offensive physical contacts with another person's

body categorically involve the use of physical force (and,

hence, qualify as misdemeanor crimes of domestic violence under

section 922(g)(9) if perpetrated against domestic partners).

          We think that the same logic extends to offensive

physical contacts with objects connected to a person.          The Law

Court has transplanted into the soil of Maine's general-purpose

assault statute the meaning of "offensive physical contact"

developed in the context of civil battery.         Rembert, 658 A.2d at

658.   In adopting this approach, the court stressed that:


                                  -26-
          Unpermitted and intentional contacts with
          anything so connected with the body as to be
          customarily regarded as part of the other's
          person and therefore as partaking of its
          inviolability is actionable as an offensive
          contact with his person.     There are some
          things, such as clothing or a cane or,
          indeed, anything directly grasped by the
          hand which are so intimately connected with
          one's body as to be universally regarded as
          part of the person.

Id. (citing Restatement (Second) of Torts § 18 cmt. c).

          The Rembert court concluded that contacts with objects

intimately   connected     with    another    individual's      body   were

actionable   under   the   offensive      physical   contact    branch   of

Maine's general-purpose assault statute.        See id.   Like physical

contact with the body itself, physical contact with a physical

object, such as a cane, inevitably entails the application of

physical pressure.       Accordingly, we conclude that offensive

physical contacts with objects intimately connected to another

person's body necessarily require the application of physical

force for their completion (and, hence, assaults of that genre,

resulting in convictions under Maine's general-purpose assault

statute, qualify as misdemeanor crimes of domestic violence

under   section   922(g)(9)       if   perpetrated    against     domestic

partners).

          The only other adjudication of a comparable claim by

a federal appellate court supports this conclusion.             In United


                                   -27-
States v. Smith, 171 F.3d 617 (8th Cir. 1999), the court of

appeals    pondered    whether    a    conviction    based   upon   Iowa's

misdemeanor assault statute qualified as a predicate offense for

purposes of section 922(g)(9).          One prong of the statute covered

"[a]ny act which is intended to cause pain or injury to, or

which is intended to result in physical contact which will be

insulting or offensive to another. . . ."           Iowa Code § 708.1(1).

The defendant complained that physical force was not a formal

element of section 708.1(1), and, accordingly, that a conviction

under it could not constitute a predicate offense within the

purview of 18 U.S.C. § 922(g)(9).            This was so, the defendant

said, because the Iowa statute encompassed physical contact that

was "merely" insulting or offensive.            Smith, 171 F.3d at 621

n.2.    The Eighth Circuit dismissed that plaint out of hand,

concluding    that    "physical       contact   [that   is   insulting    or

offensive], by necessity, requires physical force to complete."

Id.    We agree with this conclusion.

           To say more on this topic would be supererogatory.            The

short of it is that both variants of assault regulated under

Maine's general-purpose assault statute necessarily involve the

use of physical force.     As a result, all convictions under that

statute for assaults upon persons in the requisite relationship

status qualify as misdemeanor crimes of domestic violence within


                                      -28-
the purview of 18 U.S.C. § 922(g)(9).          To be precise, if a

malfeasant    convicted   under   Maine's   general-purpose   assault

statute is connected with the victim through any of the domestic

relationships enumerated in section 922(g)(9), then federal law

bars the malfeasant from possessing firearms and subjects him to

criminal     penalties    for     violating    this   proscription.

Consequently, the appellant, who admittedly possessed a rifle

after having pleaded guilty to violating Maine's general-purpose

assault statute by assaulting his wife, was lawfully convicted

on the federal charge.6

V.   VOID FOR VAGUENESS

           As a fallback position, the appellant asseverates that

section 922(g)(9) is unconstitutionally vague.         We find this

asseveration unpersuasive.

           A criminal statute is susceptible to a constitutional

challenge on vagueness grounds if it fails adequately to specify

either the conduct that it proscribes or the persons to whom it

extends.     City of Chicago v. Morales, 527 U.S. 41, 56 (1999);

United States v. Lanier, 520 U.S. 259, 265-66 (1997); Bouie v.

City of Columbia, 378 U.S. 347, 350-51 (1964).           This court


     6After resolving the matter favorable to the government,
Nason, slip op. at 4-6, Judge Singal went the extra mile: he
assumed arguendo that the categorical approach applied and
offered an alternative rationale for the conviction, id. at 7-8.
We take no view of this alternate ground of decision.

                                  -29-
previously has considered a vagueness challenge aimed at section

922(g)(9).      See Meade, 175 F.3d at 222.               In rejecting that

challenge,    we   observed   that    section    922(g)(9)      "contains     no

ambiguity either as to the persons to whom the prohibitions

apply or as to what conduct is proscribed."               Id.   Under the law

of the circuit doctrine, that holding controls.                   See, e.g.,

United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991).

             The appellant attempts to parry Meade's precedential

thrust on the ground that the defendant there concentrated his

fire on the relationship element of section 922(g)(9).                 Although

we find this distinction lacking in force, we nonetheless pause

to explain more fully why section 922(g)(9)'s mode of aggression

element is insusceptible to a vagueness challenge.

             Statutes are sufficiently certain when they employ

words   or   phrases   with   "a   well-settled      common     law    meaning,

notwithstanding an element of degree in the definition as to

which estimates might differ."        Connally v. General Constr. Co.,

269 U.S. 385, 391 (1926).          Since words, by their nature, are

imprecise instruments, even laws that easily survive vagueness

challenges may have gray areas at the margins.                    See United

States v. Wurzbach, 280 U.S. 396, 399 (1930) ("Whenever the law

draws a line there will be cases very near each other on

opposite     sides.    The    precise       course   of   the   line    may   be


                                     -30-
uncertain, but no one can come near it without knowing that . .

. if he does so it is familiar to the criminal law to make him

take the risk."); United States v. Gaudreau, 860 F.2d 357, 363

n.17 (10th Cir. 1988) (similar).                Both the federal and state

statutes    framing      this    dispute       draw   upon   legal        constructs

(physical force, bodily injury, offensive physical contact) with

rich, well-developed common law lineages.                In combination, they

afford     fair    and    ample     warning      to    persons       of     ordinary

intelligence that a prior conviction under Maine's general-

purpose assault statute, if it involves a domestic partner,

likely qualifies as a misdemeanor crime of domestic violence

sufficient    to    trigger       the   proscriptions        of     18    U.S.C.   §

922(g)(9).    Consequently, we reaffirm our ruling in Meade that

section 922(g)(9) is not unconstitutionally vague.

VI.   CONCLUSION

            We need go no further.             We hold that all convictions

under Maine's general-purpose assault statute, Me. Rev. Stat.

Ann. tit. 17-A, § 207(1), necessarily involve, as a formal

element, the use of physical force.              Accordingly, any conviction

predicated    thereon     that     involves      persons     in    the    requisite

relationship status qualifies as a predicate offense (i.e., a

misdemeanor crime of domestic violence) sufficient to trigger

the proscriptions of 18 U.S.C. § 922(g)(9).                       The lower court


                                        -31-
therefore did not err in denying the appellant's motion to

dismiss the indictment (and, concomitantly, refusing to vacate

the appellant's guilty plea).     It follows inexorably, as night

follows day, that the conviction and sentence must be



Affirmed.




                                -32-