United States v. Nason

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

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 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.

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 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.

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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).

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 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).

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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"

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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.

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 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.

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 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

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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.

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 (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

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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.

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 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.

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 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).

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 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.

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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

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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

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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

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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).

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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.

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 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,

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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

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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").

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 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:

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 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

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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

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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.

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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

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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

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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.

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