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First Circuit Announces ‘Knowingly’ Violating § 922(g)(9) Requires Proof Defendant Knew He Belonged to Category of Persons Prohibited from Possessing Firearms, Mere Knowledge of ‘Features’ of Prior Offense Insufficient

by Richard Resch

The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of Maine erred by instructing the jury that it could convict Willie Richard Minor of knowingly violating 18 U.S.C. § 922(g)(9) without finding that he knew that his prior simple assault conviction placed him in the category of persons convicted of a misdemeanor crime of domestic violence and thereby prohibited from possessing firearms.

In 2017, Minor was convicted under 18 U.S.C. § 924(a)(2) of knowingly possessing a firearm while belonging to a category of persons prohibited from doing so in violation of 18 U.S.C. § 922(g)(9)—a person who had previously been convicted of misdemeanor domestic violence. The predicate offense was a June 2010 Maine conviction for Assault, Class D misdemeanor assault against his then-spouse, Betty Minor.

Regarding the predicate offense, Minor was initially charged with a Domestic Violence Assault against Betty. However, after watching a judicial advice-of-rights video that warned “you may lose your right to purchase, possess, or own a firearm or any type of ammunition” if convicted of a crime involving the use of force against your spouse, Minor refused to plead guilty to the domestic violence charge. The prosecutor eventually reduced the charge to Assault, Class D and struck language from the complaint that the conduct was committed against a family or household member, and docket entries described the revision as a motion to amend “to delete DV reference.” Consequently, the revised charge didn’t contain any explicit reference to domestic violence, only that Minor’s conduct was directed towards Betty, and he pleaded no contest to the assault charge.

While his appeal was pending on the § 924(a)(2) conviction, the U.S. Supreme Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), in which the Supreme Court held convictions under § 924(a)(2) for knowingly violating § 922(g) require “the Government [to] prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” In light of Rehaif, the parties agreed that Minor’s conviction should be vacated and that he be retried.

Prior to Minor’s second trial, he argued that in order to be convicted the Government must prove that he knew that the simple assault to which he pleaded guilty was a misdemeanor crime of domestic violence. On the other hand, the Government argued that it need only to prove that Minor knew “the features” of his predicate offense that rendered it a misdemeanor crime of domestic violence, even if he didn’t know that the offense was in actuality a misdemeanor crime of domestic violence. According to the Government, the features were that: (1) he had been convicted of assault, (2) the conviction subjected him to incarceration for up to a year, (3) the conviction was for causing bodily injury or offensive physical contact towards another person, and (4) such person was his spouse at the time.

The district court adopted the Government’s position on the mens rea requirement, so it rejected Minor’s repeated requests that it instruct the jury that it must find he knew his predicate offense was a misdemeanor crime of domestic violence.

At trial, Minor stipulated to every aspect of the offense except what he knew about his predicate offense, so the mens rea element constituted the dispositive issue. He testified in his own defense, stating “I was convicted of a simple assault. I wasn’t convicted of a domestic. ... They removed any language ... that it was a domestic.”

The district court’s jury instructions mirrored the Government’s foregoing “features” of Minor’s predicate offense. In light of Minor’s testimony, the Government requested that the district court also charge the jury that Minor’s “belief that he could possess a firearm is not itself a defense,” which the court granted. The jury found Minor guilty, and he appealed.

The Court began its analysis by discussing Rehaif. It noted that the Supreme Court recognized that possession of a firearm may be entirely legal in the absence of a status-based bar imposed by § 922(g), so “[w]ithout knowledge of that status, [a defendant’s] behavior may … be an innocent mistake to which criminal sanctions normally do not attach.” Rehaif.

Rehaif had been charged with unlawful possession of a firearm based on the prohibited status provided for in § 922(g)(5)(A)—“an alien … illegally or unlawfully in the United States.” The Rehaif Court stated that the prohibited status is a question of law, not fact, and the Government stressed the legal maxim that “ignorance of the law” is no defense. However, the Rehaif Court explained that the principle traditionally “applies where a defendant … claims to be unaware of the existence of a statute proscribing his conduct.” It went on to explain that the principle “does not normally apply where the defendant has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct, thereby negating an element of the offense.” Thus, the Rehaif Court held that while the determination of one’s legal status within the U.S. is a “legal matter” that matter is “collateral” to a charge of violating § 922(g)(5)(A) because a defendant who is unaware or mistaken about the principal legal question—his legal status—“does not have the guilty state of mind that [§ 922(g)(5)(A)]’s language and purposes require.”  

Similarly, Minor argued that whether he knew he falls within the prohibited status in § 922(g)(9) should, like in Rehaif, be treated as a collateral legal issue because his knowledge regarding that issue could transform his otherwise innocent possession into criminal conduct.

The Court agreed with Minor, concluding that his Rehaif argument is persuasive. The Court observed that if he had been convicted of the original domestic violence assault charge this would not even be an issue because it would be obvious that he knew his conviction was for a misdemeanor crime of domestic violence. Instead, he was convicted of simple assault, and the Court pointed out that federal law’s classification of misdemeanors as crimes of domestic violence is “quite complex.” United States v. Triggs, 963 F.3d 710 (7th Cir. 2020). In fact, the Court stated it’s so complex that “it took three split United States Supreme Court opinions … to establish the contours of how a simple assault can constitute a ‘misdemeanor crime of domestic violence’” for purposes of § 922(g)(9). See Voisine v. United States, 579 U.S. 686 (2016); United States v. Castleman, 572 U.S. 157 (2014); United States v. Hayes, 555 U.S. 415 (2009).

The Court rejected the Government’s argument that being aware of the component parts of a defendant’s prohibited status necessarily means that he knows “the implications of the sum of those components.” Turning to Rehaif, the Court explained that the defendant in that case was well aware that he was in the U.S. and knew all the individual component facts that rendered his presence unlawful, yet the Supreme Court determined that the Government was still required to prove that the defendant knew the legal import of those component facts, i.e., his presence was unlawful. Rehaif. Thus, based on the foregoing rationale, the Court determined that Rehaif is controlling with respect to Minor’s appeal, meaning the Government must prove that Minor knew he had been convicted of a misdemeanor crime of domestic violence.

  The Court then turned to Minor’s claim of error that the district court’s jury instructions failed to instruct on the proper knowledge-of-status requirement under Rehaif. Because the instructions to the jury mirrored “the features” of prior conviction standard advanced by the Government but rejected by the Court, it ruled that the district court “erred when it allowed the jurors to convict without finding that Minor knew that his state-court conviction placed him in the relevant category of person barred from possessing a firearm.”

Having ruled that the district court erred, the Court next considered whether the error was harmless. United States v. Ford, 821 F.3d 63 (1st Cir. 2016). “A jury instruction error is not harmless if ‘the record contains evidence that could rationally lead to a contrary finding’ in the absence of the error.” Id. (quoting United States v. Godin, 534 F.3d 51 (1st Cir. 2008)). The Government didn’t put forth any argument that the error was harmless—“and for good reason,” according to the Court. It reasoned that given Minor’s testimony that he believed he “wasn’t convicted of a domestic” together with the amended complaint purged of any reference to domestic violence “it was certainly quite possible that a properly instructed jury could rationally find that he did not have the necessary mens rea.” Therefore, the Court ruled that the error was not harmless.

Accordingly, the Court vacated Minor’s conviction and remanded for a new trial. See: United States v. Minor, 31 F.4th 9 (1st Cir. 2022).  

Writer’s note: This case creates a circuit split with the Eleventh Circuit. See United States v. Johnson, 981 F.3d 1171 (11th Cir. 2020), (“[The defendant] must have known the facts that made [his prior conviction] qualify as a misdemeanor crime of domestic violence.”). But see id. (Martin, J., concurring in part and dissenting in part) (“I believe the majority’s approach dilutes the knowledge-of-status requirement from Rehaif that may result in the government sending people to prison for ‘innocent mistake[s].’”) (quoting Rehaif). 

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Related legal cases

United States v. Minor

United States v. Johnson

Voisine v. U.S.

SUPREME COURT OF THE UNITED STATES
579 U.S. ___; 136 S.Ct. ___; 195 L.Ed.2d 736; 2016 U.S. LEXIS 4061

STEPHEN L. VOISINE AND WILLIAM E. ARMSTRONG, III, PETITIONERS v. UNITED STATES

No. 14-10154.


June 27, 2016, Decided

NOTICE:

This preliminary Lexis version is unedited and subject to revision.


ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

778 F. 3d 176, affirmed.

VOISINE ET AL. v. UNITED STATES

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 14-10154.

Argued February 29, 2016

Decided June 27, 2016

SYLLABUS

In an effort to “close [a] dangerous loophole” in the gun control laws, United States v. Castleman, 572 U. S. ___, ___, Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of a “misdemeanor crime of domestic violence,” 18 U. S. C. §922(g)(9). Section 921(a)(33)(A) defines that phrase to include a misdemeanor under federal, state, or tribal law, committed against a domestic relation that necessarily involves the “use . . . of physical force.” In Castleman, this Court held that a knowing or intentional assault qualifies as such a crime, but left open whether the same was true of a reckless assault.

Petitioner Stephen Voisine pleaded guilty to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. When law enforcement officials later investigated Voisine for killing a bald eagle, they [*2] learned that he owned a rifle. After a background check turned up Voisine’s prior conviction under §207, the Government charged him with violating §922(g)(9). Petitioner William Armstrong pleaded guilty to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 against a family or household member. While searching Armstrong’s home as part of a narcotics investigation a few years later, law enforcement officers discovered six guns and a large quantity of ammunition. Armstrong was also charged under §922(g)(9). Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior convictions could have been based on reckless, rather than knowing or intentional, conduct and thus did not quality as misdemeanor crimes of domestic violence. The District Court rejected those claims, and each petitioner pleaded guilty. The First Circuit affirmed, holding that “an offense with a mens rea of recklessness may qualify as a ‘misdemeanor crime of violence’ under §922(g)(9).” Voisine and Armstrong filed a joint petition for certiorari, and their case was remanded for further consideration in light of Castleman. The First Circuit again upheld the convictions [*3] on the same ground.

Held: A reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9). Pp. 4-12.

(a) That conclusion follows from the statutory text. Nothing in the phrase “use. . . of physical force” indicates that §922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. Dictionaries consistently define the word “use” to mean the “act of employing” something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at ___. But nothing about the definition of “use” demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Nor does Leocal v. Ashcroft, 543 U. S. 1, which held that the “use” of force excludes accidents. Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms. Pp. [*4] 5-8.

(b) So too does the relevant history. Congress enacted §922(g)(9) in 1996 to bar those domestic abusers convicted of garden-variety assault or battery misdemeanors—just like those convicted of felonies—from owning guns. Then, as now, a significant majority of jurisdictions—34 States plus the District of Columbia—defined such misdemeanor offenses to include the reckless infliction of bodily harm. In targeting those laws, Congress thus must have known it was sweeping in some persons who had engaged in reckless conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256. Indeed, that was part of the point: to apply the federal firearms restriction to those abusers, along with all others, covered by the States’ ordinary misdemeanor assault laws.

Petitioners’ reading risks rendering §922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness. Consider Maine’s law, which criminalizes “intentionally, knowingly or recklessly” injuring another. Assuming that statute defines a single crime, petitioners’ view that §921(a)(33)(A) requires at least a knowing mens rea would mean that no conviction obtained under that law could qualify as a “misdemeanor crime of domestic violence.” Descamps v. United States, 570 U. S. ___, ___. In Castleman, the Court declined to construe [*5] §921(a)(33)(A) so as to render §922(g)(9) ineffective in 10 States. All the more so here, where petitioners’ view would jeopardize §922(g)(9)’s force in several times that many. Pp. 8-11.

778 F. 3d 176, affirmed.


JUDGES: [*1] Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.

OPINION

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined as to Parts I and II.

JUSTICE KAGAN delivered the opinion of the Court.

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U. S. C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.” §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

I

Congress enacted §922(g)(9) some 20 years ago to “close [a] dangerous loophole” in the gun control laws. United States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2) (quoting United States v. Hayes, 555 U. S. 415, 426 (2009)). An existing provision already barred convicted felons from possessing firearms. See §922(g)(1) (1994 ed.). But many perpetrators of domestic violence are charged with misdemeanors rather than felonies, notwithstanding [*6] the harmfulness of their conduct. See Castleman, 572 U. S., at ___ (slip op., at 2). And “[f]irearms and domestic strife are a potentially deadly combination.” Hayes, 555 U. S., at 427. Accordingly, Congress added §922(g)(9) to prohibit any person convicted of a “misdemeanor crime of domestic violence” from possessing any gun or ammunition with a connection to interstate commerce. And it defined that phrase, in §921(a)(33)(A), to include a misdemeanor under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim, that “has, as an element, the use or attempted use of physical force.”

Two Terms ago, this Court considered the scope of that definition in a case involving a conviction for a knowing or intentional assault. See Castleman, 572 U. S., at ___-___ (slip op., at 4-13). In Castleman, we initially held that the word “force” in §921(a)(33)(A) bears its common-law meaning, and so is broad enough to include offensive touching. See id., at ___ (slip op., at 4). We then determined that “the knowing or intentional application of [such] force is a ‘use’ of force.” Id., at ___ (slip op., at 13). But we expressly left open whether a reckless assault also qualifies as a “use” of force—so that a misdemeanor conviction for such conduct would trigger §922(g)(9)’s firearms ban. See id., at ___, n. 8 (slip op., at 11, n. 8). The two cases before us now raise that [*7] issue.

Petitioner Stephen Voisine pleaded guilty in 2004 to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17-A, §207(1)(A). Several years later, Voisine again found himself in legal trouble, this time for killing a bald eagle. See 16 U. S. C. §668(a). While investigating that crime, law enforcement officers learned that Voisine owned a rifle. When a background check turned up his prior misdemeanor conviction, the Government charged him with violating 18 U. S. C. §922(g)(9).

Petitioner William Armstrong pleaded guilty in 2008 to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 (the general statute under which Voisine was convicted) against a family or household member. See Me. Rev. Stat. Ann., Tit. 17-A, §207-A(1)(A). A few years later, law enforcement officers searched Armstrong’s home as part of a narcotics investigation. They discovered six guns, plus a large quantity of ammunition. Like Voisine, Armstrong was charged under §922(g)(9) for unlawfully possessing firearms.

Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior [*8] convictions (as the Government conceded) could have been based on reckless, rather than knowing or intentional, conduct. The District Court rejected those claims. Each petitioner then entered a guilty plea conditioned on the right to appeal the District Court’s ruling.

The Court of Appeals for the First Circuit affirmed the two convictions, holding that “an offense with a mens rea of recklessness may qualify as a ‘misdemeanor crime of violence’ under §922(g)(9).” United States v. Armstrong, 706 F. 3d 1, 4 (2013); see United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam). Voisine and Armstrong filed a joint petition for certiorari, and shortly after issuing Castleman, this Court (without opinion) vacated the First Circuit’s judgments and remanded the cases for further consideration in light of that decision. See Armstrong v. United States, 572 U. S. ___ (2014). On remand, the Court of Appeals again upheld the convictions, on the same ground. See 778 F. 3d 176, 177 (2015).

We granted certiorari, 577 U. S. ___ (2015), to resolve a Circuit split over whether a misdemeanor conviction for recklessly assaulting a domestic relation disqualifies an individual from possessing a gun under §922(g)(9). We now affirm.

II

The issue before us is whether §922(g)(9) applies to reckless assaults, as it does to knowing or intentional ones. To commit an assault recklessly is to take that action with a certain state [*9] of mind (or mens rea)—in the dominant formulation, to “consciously disregard[ ]” a substantial risk that the conduct will cause harm to another. ALI, Model Penal Code §2.02(2)(c) (1962); Me. Rev. Stat. Ann., Tit. 17-A, §35(3) (Supp. 2015) (adopting that definition); see Farmer v. Brennan, 511 U. S. 825, 836-837 (1994) (noting that a person acts recklessly only when he disregards a substantial risk of harm “of which he is aware”). For purposes of comparison, to commit an assault knowingly or intentionally (the latter, to add yet another adverb, sometimes called “purposefully”) is to act with another state of mind respecting that act’s consequences—in the first case, to be “aware that [harm] is practically certain” and, in the second, to have that result as a “conscious object.” Model Penal Code §§2.02 (2)(a)-(b); Me. Rev. Stat. Ann., Tit. 17-A, §§35(1)-(2).

Statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9). Congress defined that phrase to include crimes that necessarily involve the “use . . . of physical force.” §921(a) (33)(A). Reckless assaults, no less than the knowing or intentional ones we addressed in Castleman, satisfy that definition. Further, Congress enacted §922(g)(9) in order to prohibit domestic abusers convicted under run-of-the-mill misdemeanor assault and battery laws [*10] from possessing guns. Because fully two-thirds of such state laws extend to recklessness, construing §922(g)(9) to exclude crimes committed with that state of mind would substantially undermine the provision’s design.

A

Nothing in the word “use”—which is the only statutory language either party thinks relevant—indicates that §922(g)(9) applies exclusively to knowing or intentional domestic assaults. Recall that under §921(a)(33)(A), an offense counts as a “misdemeanor crime of domestic violence” only if it has, as an element, the “use” of force. Dictionaries consistently define the noun “use” to mean the “act of employing” something. Webster’s New International Dictionary 2806 (2d ed. 1954) (“[a]ct of employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987) (“act of employing, using, or putting into service”); Black’s Law Dictionary 1541 (6th ed. 1990) (“[a]ct of employing,” “application”). On that common understanding, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at ___ (slip op., at 13) (“[T]he word ‘use’ conveys the idea that the thing used (here, ‘physical force’) has been made [*11] the user’s instrument” (some internal quotation marks omitted)). But the word “use” does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Or, otherwise said, that word is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.

Consider a couple of examples to see the ordinary meaning of the word “use” in this context. If a person with soapy hands loses his grip on a plate, which then shatters and cuts his wife, the person has not “use[d]” physical force in common parlance. But now suppose a person throws a plate in anger against the wall near where his wife is standing. That hurl counts as a “use” of force even if the husband did not know for certain (or have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife. Similarly, to spin out a scenario discussed at oral argument, if a person lets slip a door that he is trying to hold open for his girlfriend, he has not actively employed [*12] (“used”) force even though the result is to hurt her. But if he slams the door shut with his girlfriend following close behind, then he has done so—regardless of whether he thinks it absolutely sure or only quite likely that he will catch her fingers in the jamb. See Tr. of Oral Arg. 10-11 (counsel for petitioners acknowledging that this example involves “the use of physical force”). Once again, the word “use” does not exclude from §922(g)(9)’s compass an act of force carried out in conscious disregard of its substantial risk of causing harm.

And contrary to petitioners’ view, nothing in Leocal v. Ashcroft, 543 U. S. 1 (2004), suggests a different conclusion—i.e., that “use” marks a dividing line between reckless and knowing conduct. See Brief for Petitioners 18-22. In that dec

U.S. v. Castleman

SUPREME COURT OF THE UNITED STATES
571 U.S. ___; 134 S.Ct. 1405; 188 L.Ed.2d 426; 2014 U.S. LEXIS 2220

UNITED STATES, PETITIONER v. JAMES ALVIN CASTLEMAN

No. 12-1371.

January 15, 2014, Argued

March 26, 2014, Decided

NOTICE:

The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: [*1]
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
United States v. Castleman, 695 F.3d 582, 2012 U.S. App. LEXIS 19635 (6th Cir.), 2012 FED App. 344P (6th Cir.) (6th Cir. Tenn., 2012)

DISPOSITION: 695 F. 3d 582, reversed and remanded.


SYLLABUS


Respondent Castleman moved to dismiss his indictment under 18 U. S. C. §922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” He argued that his previous conviction for “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, App. 27, did not qualify as a “misdemeanor crime of domestic violence” because it did not involve “the use or attempted use of physical force,” 18 U. S. C. §921(a)(33)(A)(ii). The District Court agreed, reasoning that “physical force” must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning. The Sixth Circuit affirmed on a different rationale. It held that the degree of physical force required for a conviction to constitute a “misdemeanor crime of domestic violence” is the same as that required for a “violent felony” under the Armed Career Criminal Act (ACCA), §924(e)(2)(B)(i)—namely, violent force—and that Castleman could have been convicted for causing slight injury by nonviolent conduct.

Held: Castleman’s [*2] conviction qualifies as a “misdemeanor crime of domestic violence.” Pp. 4-16.

(a) Section 922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction—namely, offensive touching. Congress presumably intends to incorporate the common-law meaning of terms that it uses, and nothing suggests Congress intended otherwise here. The Sixth Circuit relied upon Johnson v. United States, 559 U. S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1, in which the common-law meaning of “force” was found to be a “comical misfit,” id., at 145, 130 S. Ct. 1265, 176 L. Ed. 2d 1, when read into ACCA’s “violent felony” definition. But Johnson resolves this case in the Government’s favor: The very reasons for rejecting the common-law meaning in Johnson are reasons to embrace it here. First, whereas it was “unlikely” that Congress meant to incorporate in ACCA’s “violent felony” definition “a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor,” id., at 141, 130 S. Ct. 1265, 176 L. Ed. 2d 1, it is likely that Congress meant to incorporate the misdemeanor-specific meaning of “force” in defining a “misdemeanor crime of domestic [*3] violence.” Second, whereas the word “violent” or “violence” standing alone “connotes a substantial degree of force,” id., at 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1, that is not true of “domestic violence,” which is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context. Third, whereas this Court has hesitated to apply ACCA to “crimes which, though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals,’” Begay v. United States, 553 U. S. 137, 146, 128 S. Ct. 1581, 170 L. Ed. 2d 490, there is no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with others whom §922(g) disqualifies from gun ownership. In addition, a contrary reading would have made §922(g)(9) inoperative in at least ten States when it was enacted. Pp. 4-10.

(b) Under this definition of “physical force,” Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.” The application of the modified categorical approach—consulting Castleman’s state indictment to determine whether his conviction entailed the elements necessary to constitute the generic federal offense—is straightforward. [*4] Castleman pleaded guilty to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a “bodily injury” must result from “physical force.” The common-law concept of “force” encompasses even its indirect application, making it impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a “use” of force. Leocal v. Ashcroft, 543 U. S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271, distinguished. Pp. 10-13.

(c) Castleman claims that legislative history, the rule of lenity, and the canon of constitutional avoidance weigh against this Court’s interpretation of §922(g)(9), but his arguments are unpersuasive. Pp. 14-15.

695 F. 3d 582, reversed and remanded.

COUNSEL: Melissa Arbus Sherry argued the cause for petitioner.

Charles A. Rothfeld argued the cause for respondent.

JUDGES: SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined.


OPINION


JUSTICE SOTOMAYOR delivered the opinion of the Court.

Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U. S. 415, 427, 129 S. Ct. 1079, 172 L. Ed. 2d 816 (2009), Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App. 27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.” We hold that it does.

I

A

This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year. 1 See Georgia v. Randolph, 547 U. S. 103, 117-118, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13-15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9-12, and the presence of [*6] a firearm increases the likelihood that it will escalate to homicide, see id., at 14-15; Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) (“When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed”). “[A]ll too often,” as one Senator noted during the debate over §922(g)(9), “the only difference between a battered woman and a dead woman is the presence of a gun.” 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone).

FOOTNOTES

1 See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J. Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct. 2013) (Table 1) (1,259,390 incidents of domestic violence in 2012), online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet materials as visited Mar. 19, 2014, and available in Clerk of Court’s case file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner Violence, 1993-2001, p. 1 (Feb. 2003) (violence among intimate partners caused deaths of 1,247 women and 440 men in 2000), online at http://www.bjs.gov/content/pub/pdf/ipv01.pdf.


Congress enacted §922(g)(9), in light of these sobering [*7] facts, to “‘close [a] dangerous loophole’” in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U. S., at 418, 426, 129 S. Ct. 1079, 172 L. Ed. 2d 816. Section 922(g)(9) provides, as relevant, that any person “who has been convicted . . . Of a misdemeanor crime of domestic violence” may not “possess in or affecting commerc[e] any firearm or ammunition.” With exceptions that do not apply here, the statute defines a “misdemeanor crime of domestic violence” as

“an offense that . . . (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” §921(a)(33)(A).

This case concerns the meaning of one phrase in this definition: “the [*8] use . . . Of physical force.”

B

In 2001, Castleman was charged in a Tennessee court with having “intentionally or knowingly cause[d] bodily injury to” the mother of his child, in violation of Tenn. Code Ann. §39-13-111(b) (Supp. 2002). App. 27. He pleaded guilty. Id., at 29.

In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and on other charges not relevant here. Id., at 13-16.

Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a “misdemeanor crime of domestic violence” because it did not “ha[ve], as an element, the use . . . Of physical force,” §921(a)(33)(A)(ii). The District Court agreed, on the theory that “the ‘use of physical force’ for §922(g)(9) purposes” must entail “violent contact with the victim.” App. To Pet. For Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact”—for example, by “deceiving [the victim] into drinking a poisoned [*9] beverage.” Id., at 41a.

A divided panel of the U. S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F. 3d 582 (2012). The majority held that the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines “violent felony.” Id., at 587. Applying our decision in Johnson v. United States, 559 U. S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), which held that §924(e)(2)(B)(i) requires “violent force,” id., at 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1, the majority held that Castleman’s conviction did not qualify as a “misdemeanor crime of domestic violence” because Castleman could have been convicted for “caus[ing] a slight, nonserious physical injury with conduct that cannot be described as violent.” 695 F. 3d, at 590. Judge McKeague dissented, arguing both that the majority erred in extending Johnson’s definition of a “violent felony” to the context of a “misdemeanor crime of domestic violence” and that, in any event, Castleman’s conviction satisfied the Johnson standard. Id., at 593-597.

The Sixth Circuit’s decision deepened a split of authority among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F. 3d 10, 18 (CA1 2001) [*10] (§922(g)(9) “encompass[es] crimes characterized by the application of any physical force”), with United States v. Belless, 338 F. 3d 1063, 1068 (CA9 2003) (§922(g)(9) covers only “the violent use of force”). We granted certiorari to resolve this split, 570 U. S. ___, 134 S. Ct. 49, 186 L. Ed. 2d 962 (2013), and now reverse the Sixth Circuit’s judgment.

II

A

“It is a settled principle of interpretation that, absent other indication, ‘Congress intends to incorporate the well-settled meaning of the common-law terms it uses.’” Sekhar v. United States, 570 U. S. ___, ___, 133 S. Ct. 2720, 186 L. Ed. 2d 794, 800 (2013). Seeing no “other indication” here, we hold that Congress incorporated the common-law meaning of “force”—namely, offensive touching—in §921(a)(33)(A)’s definition of a “misdemeanor crime of domestic violence.”

Johnson resolves this case in the Government’s favor—not, as the Sixth Circuit held, in Castleman’s. In Johnson, we considered whether a battery conviction was a “violent felony” under the Armed Career Criminal Act (ACCA), §924(e)(1). As here, ACCA defines such a crime as one that “has as an element the use . . . Of physical force,” §924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of [*11] battery was “satisfied by even the slightest offensive touching.” 559 U. S., at 139, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)). 2 And we recognized the general rule that “a common-law term of art should be given its established common-law meaning,” except “where that meaning does not fit.” 559 U. S., at 139, 130 S. Ct. 1265, 176 L. Ed. 2d 1. We declined to read the common-law meaning of “force” into ACCA’s definition of a “violent felony,” because we found it a “comical misfit with the defined term.” Id., at 145, 130 S. Ct. 1265, 176 L. Ed. 2d 1; see United States v. Stevens, 559 U. S. 460, 474, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (“[A]n unclear definitional phrase may take meaning from the term to be defined”). In defining a “‘violent felony,’” we held, “the phrase ‘physical force’” must “mea[n] violent force.” Johnson, 559 U. S., at 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1. But here, the common-law meaning of “force” fits perfectly: The very reasons we gave for rejecting that meaning in defining a “violent felony” are reasons to embrace it in defining a “misdemeanor crime of domestic violence.” 3

FOOTNOTES

2 We explained that the word “physical” did not add much to the word “force,” except to distinguish “force exerted by and through concrete bodies . . . From, [*12] for example, intellectual force or emotional force.” Johnson, 559 U. S., at 138, 130 S. Ct. 1265, 176 L. Ed. 2d 1.

3 Johnson specifically reserved the question whether our definition of “physical force” would extend to 18 U. S. C. §922(g)(9). 559 U. S., at 143-144, 130 S. Ct. 1265, 176 L. Ed. 2d 1. And these reasons for declining to extend Johnson’s definition to §922(g)(9) serve equally to rebut the “presumption of consistent usage” on which JUSTICE SCALIA Click for Enhanced Coverage Linking Searches’s concurrence heavily relies, post, at 1-2, 4.


First, because perpetrators of domestic violence are “routinely prosecuted under generally applicable assault or battery laws,” Hayes, 555 U. S., at 427, 129 S. Ct. 1079, 172 L. Ed. 2d 816, it makes sense for Congress to have classified as a “misdemeanor crime of domestic violence” the type of conduct that supports a common-law battery conviction. Whereas it was “unlikely” that Congress meant to incorporate in the definition of a “‘violent felony’ a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor,” Johnson, 559 U. S., at 141, 130 S. Ct. 1265, 176 L. Ed. 2d 1, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of “force” in defining a “misdemeanor crime of domestic violence.”

Second, whereas the word “violent” or “violence” standing alone “connotes a substantial [*13] degree of force,” id., at 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1, 4 that is not true of “domestic violence.” “Domestic violence” is not merely a type of “violence”; it is a term of art encompassing acts that one might not characterize as “violent” in a non

U.S. v. Hayes

SUPREME COURT OF THE UNITED STATES
555 U.S. 415; 129 S.Ct. 1079; 172 L.Ed.2d 816; 2009 U.S. LEXIS 1634

UNITED STATES, PETITIONER v. RANDY EDWARD HAYES

No. 07-608

November 10, 2008, Argued

February 24, 2009, Decided

NOTICE: The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: [*1]
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

DISPOSITION: 482 F.3d 749, reversed and remanded.

SYLLABUS

In 1996, Congress extended the federal Gun Control Act of 1968's prohibition on possession of a firearm by convicted felons to include persons convicted of "a misdemeanor crime of domestic violence," 18 U.S.C. § 922(g)(9). Responding to a 911 call reporting domestic violence, police officers discovered a rifle in respondent Hayes's home. Based on this and other evidence, Hayes was charged under §§ 922(g)(9) and 924(a)(2) with possessing firearms after having been convicted of a misdemeanor crime of domestic violence. The indictment identified as the predicate misdemeanor offense Hayes's 1994 conviction for battery against his then-wife, in violation of West Virginia law. Hayes moved to dismiss the indictment on the ground that his 1994 conviction did not qualify as a predicate offense under § 922(g)(9) because West Virginia's generic battery law did not designate a domestic relationship between aggressor and victim as an element of the offense. When the District Court denied the motion, Hayes entered a conditional guilty plea and appealed. The Fourth Circuit reversed, [*2] holding that a § 922(g)(9) predicate offense must have as an element a domestic relationship between offender and victim.

Held: A domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense. Pp. 4-13.

(a) The definition of "misdemeanor crime of domestic violence," contained in § 921(a)(33)(A), imposes two requirements. First, the crime must have, "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon." § 921(a)(33)(A)(ii). Second, it must be "committed by" a person who has a specified domestic relationship with the victim. Ibid. The definition does not, however, require the predicate-offense statute to include, as an element, the existence of that domestic relationship. Instead, it suffices for the Government to charge and prove a prior conviction that was, in fact, for "an offense . . . Committed by" the defendant against a spouse or other domestic victim. Pp. 4-9.

(1) As an initial matter, § 921(a)(33)(A)'s use of the singular word "element" suggests that Congress intended to describe only one required element, the [*3] use of force. Had Congress also meant to make the specified relationship a predicate-offense element, it likely would have used the plural "elements," as it has done in other offense-defining provisions. See, e.g., 18 U.S.C. § 3559(c)(2)(A). Treating the specified relationship as a predicate-offense element is also awkward as a matter of syntax. It requires the reader to regard "the use or attempted use of physical force, or the threatened use of a deadly weapon" as an expression modified by the relative clause "committed by." It is more natural, however, to say a person "commit[s]" an "offense" than to say one "commit[s]" a "use." Pp. 5-6.

(2) The Fourth Circuit's textual arguments to the contrary are unpersuasive. First, that court noted, clause (ii) is separated from clause (i) -- which defines "misdemeanor" -- by a line break and a semicolon, while clause (ii)'s components -- force and domestic relationship -- are joined in an unbroken word flow. Such less-than-meticulous drafting hardly shows that Congress meant to exclude from § 922(g)(9)'s prohibition domestic abusers convicted under generic assault or battery laws. As structured, § 921(a)(33)(A) defines "misdemeanor crime of [*4] domestic violence" by addressing in clause (i) the meaning of "misdemeanor," and in clause (ii) "crime of domestic violence." Because a "crime of domestic violence" involves both a use of force and a domestic relationship, joining these features together in clause (ii) would make sense even if Congress had no design to confine laws qualifying under § 921(a)(33)(A) to those designating as elements both use of force and domestic relationship. A related statutory provision, 25 U.S.C. § 2803(3)(C), indicates that Congress did not ascribe substantive significance to the placement of line breaks and semicolons in 18 U.S.C. § 921(a)(33)(A). Second, the Fourth Circuit relied on the "rule of the last antecedent" to read "committed by" as modifying the immediately preceding use-of-force phrase rather than the earlier word "offense." The last-antecedent rule, however, "is not an absolute and can assuredly be overcome by other indicia of meaning." Barnhart v. Thomas, 540 U.S. 20, 26. Applying the rule here would require the Court to accept the unlikely premises that Congress employed the singular "element" to encompass two distinct concepts, and that it adopted the awkward construction "commi[t]" [*5] a use. The rule, moreover, would render the word "committed" superfluous, for Congress could have conveyed the same meaning by referring simply to "the use . . . Of physical force . . . By a current or former spouse . . . ." Pp. 6-9.

(b) Practical considerations strongly support this Court's reading of § 921(a)(33)(A). By extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, § 922(g)(9)'s proponents sought to close a loophole: Existing felon-in-possession laws often failed to keep firearms out of the hands of domestic abusers, for such offenders generally were not charged with, or convicted of, felonies. Construing § 922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute would frustrate Congress' manifest purpose. The statute would have been a dead letter in some two-thirds of the States because, in 1996, only about one-third of them had criminal statutes specifically proscribing domestic violence. Hayes argues that the measure that became §§ 922(g)(9) and 921(a)(33)(A), though it initially may have had a broadly remedial purpose, was revised and narrowed during the legislative process, but his argument [*6] is not corroborated by the revisions he identifies. Indeed, § 922(g)(9)'s Senate sponsor observed that a domestic relationship often would not be a designated element of the predicate offense. Such remarks are "not controlling," Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, but the legislative record is otherwise silent. Pp. 10-12.

(c) The rule of lenity, on which Hayes also relies, applies only when a statute is ambiguous. Section 921(a)(33)(A)'s definition, though not a model of the careful drafter's art, is also not "grievous[ly] ambigu[ous]." Huddleston v. United States, 415 U.S. 814, 831. The text, context, purpose, and what little drafting history there is all point in the same direction: Congress defined "misdemeanor crime of domestic violence" to include an offense "committed by" a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime. Pp. 12-13.

482 F.3d 749, reversed and remanded.

JUDGES: GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, BREYER, and ALITO, JJ., joined, and in which THOMAS, J., joined as [*7] to all but Part III. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, J., joined.

OPINION

JUSTICE GINSBURG delivered the opinion of the Court. *


FOOTNOTES

* JUSTICE THOMAS joins all but Part III of this opinion.



The federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of "a misdemeanor crime of domestic violence." § 922(g)(9). The definition of "misdemeanor crime of domestic violence," contained in § 921(a)(33)(A), is at issue in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender's spouse (or other relation specified in § 921(a)(33)(A))? Or, to trigger the possession ban, must the predicate misdemeanor identify as an element of the crime a domestic relationship between aggressor and victim? We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.

I

In 2004, law enforcement officers in Marion County, West Virginia, came to the home [*8] of Randy Edward Hayes in response to a 911 call reporting domestic violence. Hayes consented to a search of his home, and the officers discovered a rifle. Further investigation revealed that Hayes had recently possessed several other firearms as well. Based on this evidence, a federal grand jury returned an indictment in 2005, charging Hayes, under §§ 922(g)(9) and 924(a)(2), with three counts of possessing firearms after having been convicted of a misdemeanor crime of domestic violence.

The indictment identified Hayes's predicate misdemeanor crime of domestic violence as a 1994 conviction for battery in violation of West Virginia law. 1 The victim of that battery, the indictment alleged, was Hayes' then-wife -- a person who "shared a child in common" with Hayes and "who was cohabitating with … him as a spouse." App. 3. 2


FOOTNOTES

1 West Virginia's battery statute provides: "[A]ny person [who] unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, . . . Shall be guilty of a misdemeanor." W. Va. Code Ann. § 61-2-9(c) (Lexis 2005).

2 The indictment stated, in relevant [*9] part:

"Defendant RANDY EDWARD HAYES' February 24, 1994 Battery conviction . . . Constituted a misdemeanor crime of domestic violence because:

"a. Battery is a misdemeanor under State law in West Virginia;

"b. Battery has, as an element, the use and attempted use of physical force;

"c. Defendant RANDY EDWARD HAYES committed the offense of Battery against the victim:

"i. who was his current spouse; and

"ii. Who was a person with whom he shared a child in common; and

"iii. Who was cohabitating with and had cohabitated with him as a spouse." App. 2-3 (bold typeface deleted).



Asserting that his 1994 West Virginia battery conviction did not qualify as a predicate offense under § 922(g)(9), Hayes moved to dismiss the indictment. Section 922(g)(9), Hayes maintained, applies only to persons previously convicted of an offense that has as an element a domestic relationship between aggressor and victim. The West Virginia statute under which he was convicted in 1994, Hayes observed, was a generic battery proscription, not a law designating a domestic relationship between offender and victim as an element of the offense. The United States District Court for the Northern District of West Virginia rejected [*10] Hayes's argument and denied his motion to dismiss the indictment. 377 F. Supp. 2d 540, 541-542 (2005). Hayes then entered a conditional guilty plea and appealed.

In a 2-to-1 decision, the United States Court of Appeals for the Fourth Circuit reversed. A § 922(g)(9) predicate offense, the Court of Appeals held, must "have as an element a domestic relationship between the offender and the victim." 482 F.3d 749, 751 (2007). In so ruling, the Fourth Circuit created a split between itself and the nine other Courts of Appeals that had previously published opinions deciding the same question. 3 According to those courts, §922(g)(9) does not require that the offense predicate to the defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. We granted certiorari, 552 U.S. ___ (2008), to resolve this conflict.


FOOTNOTES

3 See United States v. Heckenliable, 446 F.3d 1048, 1049 (CA10 2006); United States v. Belless, 338 F.3d 1063, 1067 (CA9 2003); White v. Department of Justice, 328 F.3d 1361, 1364-1367 (CA Fed. 2003); United States v. Shelton, 325 F.3d 553, 562 (CA5 2003); United States v. Kavoukian, 315 F.3d 139, 142-144 (CA2 2002); United States v. Barnes, 295 F.3d 1354, 1358-1361 (CADC 2002); [*11] United States v. Chavez, 204 F.3d 1305, 1313-1314 (CA11 2000); United States v. Meade, 175 F.3d 215, 218-221 (CA1 1999); United States v. Smith, 171 F.3d 617, 619-621 (CA8 1999).



II

Section 922(g)(9) makes it "unlawful for any person . . . Who has been convicted in any court of a misdemeanor crime of domestic violence . . . [to] possess in or affecting commerce, any firearm or ammunition." Section 921(a)(33)(A) defines "misdemeanor crime of domestic violence" as follows:

"[T]he term 'misdemeanor crime of domestic violence' means an offense that --

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

"(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim" (footnotes omitted).

This definition, all agree, imposes two requirements: First, a "misdemeanor crime of domestic violence" must have, "as an element, the [*12] use or attempted use of physical force, or the threatened use of a deadly weapon." Second, it must be "committed by" a person who has a specified domestic relationship with the victim. The question here is whether the language of § 921(a)(33)(A) calls for a further limitation: Must the statute describing the predicate offense include, as a discrete element, the existence of a domestic relationship between offender and victim? In line with the large majority of the Courts of Appeals, we conclude that § 921(a)(33)(A) does not require a predicate-offense statute of that specificity. Instead, in a § 922(g)(9) prosecution, it suffices for the Government to charge and prove a prior conviction that was, in fact, for "an offense . . . Committed by" the defendant against a spouse or other domestic victim.

We note as an initial matter that § 921(a)(33)(A) uses the word "element" in the singular, which suggests that Congress intended to describe only one required element. Immediately following the word "element," § 921(a)(33)(A)(ii) refers to the use of force (undoubtedly a required element) and thereafter to the relationship between aggressor and victim, e.g., a current or former spouse. The [*13] manner in which the offender acts, and the offender's relationship with the victim, are "conceptually distinct attributes." United States v. Meade, 175 F.3d 215, 218 (CA1 1999). 4 Had Congress meant to make the latter as well as the former and element of the predicate offense, it likely would have used the plural "elements," as it has done in other offense-defining provisions. See, e.g., 18 U.S.C. §3559 (c)(2)(A) ("[T]he term 'assault with intent to commit rape' means an offense that has as its elements engaging in physical contact with another person or using or brandishing a weapon against another person with intent to commit aggravated sexual abuse or sexual abuse."). Cf. Black's Law Dictionary 559 (8th ed. 2004)(defining "element" as "[a] constituent part of a claim that must be proved for the claim to succeed <<Burke failed to prove the element of proximate cause in prosecuting his negligence claim>"). 5


FOOTNOTES

4 Hayes observes, see Brief for Respondent 24-25, that Congress has used the singular "element" in defining a "crime of violence" to require both an action (the use of force) and its object (the person of another). See, e.g., 18 U.S.C. §

 

 

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