UNITED STATES of America, Appellee, v. John Donald BARNES, Appellant.
No. 01-3048.
United States Court of Appeals, District of Columbia Circuit.
Argued April 18, 2002. Decided July 23, 2002.
295 F.3d 1354
Jeannie S. Rhee, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese III and Barry Wiegand, Assistant United States Attorneys, were on brief.
Before: SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.
Dissenting opinion filed by Circuit Judge SENTELLE.
John D. Barnes (Barnes) appeals his conviction under
I.
On August 5, 1997 Barnes was charged in D.C. Superior Court with assault under
On August 17, 2000 an officer of the Metropolitan Police Department observed a vehicle being driven by Barnes. A paper trash bag obscured the right rear vent window. See 8/22/00 Tr. at 6. Believing that the car was stolen, the officer made a traffic stop and ran a search on Barnes‘s driver‘s license. The search revealed that he did not have a valid license. Upon placing Barnes under arrest for driving without a permit, the police officer conducted a search and discovered that Barnes had two .45 caliber bullets in his left pocket. See 8/22/00 Tr. 6-7. Another officer, who arrived at the scene before Barnes‘s arrest, searched the car and found a loaded and operable Sig Sauer .45 caliber pistol underneath the driver‘s seat. After a records check revealed that Barnes had been convicted of assault under
On February 1, 2001 Barnes filed a brief in district court, raising the statutory claim explicitly reserved in his plea agreement, see February 1, 2001 Defendant‘s Memorandum of Law (App. 20-58), along with an unopposed motion to supplement that claim with several constitutional arguments. See February 1, 2001 Defendant‘s Unopposed Motion to Supplement (App. 16-19). Barnes maintained that his assault conviction under
On March 19, 2001 the district court held that Barnes‘s “conviction in the Superior Court of the District of Columbia in Criminal Case No. M-11747-97 for simple assault under
II.
Because the district court‘s ruling involved solely questions of law, our review is de novo. See Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999) (citations omitted); United States v. Popa, 187 F.3d 672, 674 (D.C.Cir.1999) (citations omitted) (first amendment challenge subject to de novo review).
A. Elements of “Misdemeanor Crime of Domestic Violence”
In 1996, the Congress amended the Gun Control Act of 1968,
It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate commerce.
the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal or State 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
In construing a statute, we look first for the plain meaning of the text. If the language of the statute has a “plain and unambiguous meaning,” our inquiry ends so long as the resulting “statutory scheme is coherent and consistent.” See United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal quotations omitted)). Whether statutory language is plain depends on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341.
Both sides agree that
The premise of Barnes‘s reading of
“larceny means an offense that has, as an element, monetary gain, committed by a person ...,”
it would be obvious that “committed” modifies “offense” and that monetary gain is the only “element.” Just as “monetary gain” is not “committed,” the “use of force” is not “committed.” The “offense” is “committed.”6
Syntax cannot always control construction. The legislative process may have subordinated clear writing to some other goal. We must examine the meaning of the words to see whether one construction makes more sense than the other as a means of attributing a rational purpose to Congress. Read for rational purpose, the syntactically disfavored construction of section 1369(b)(1)(E) is sensible, the other as unlikely as the flying whales.
Id. at 1311. The fact that the Congress somewhat awkwardly included the “committed by” phrase in subpart (ii) (instead of adding a subpart (iii)) is not significant in view of the unnatural reading that would result if “committed by” were construed to modify “use of force.”7
That the district court as well as every other court that has considered the issue concluded, albeit on a different basis, that section 921(a)(33)(A)‘s language plainly requires only one element, i.e., the use of force, further bolsters our interpretation. See March 19, 2001 Memorandum Opinion at 4; United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.2000) (concluding that conviction under
The crux of the matter is whether the phrase “as an element” modifies both requirements or just the use of force requirement. The inclusion of both the use of force and domestic relationship requirements in one sentence does not mandate that they be treated as one element. In drafting the statute Con
gress placed the singular word “element” immediately before the use of force requirement. In choosing the singular word “element,” Congress intended to modify only the language immediately following the phrase. If Congress had intended that both requirements be mandatory elements of the underlying state statute the word “element” would have been in the plural to encompass both requirements. Reading the phrase “has, as an element” in its ordinary plain meaning, it is clear the singular “element” modifies only the use of force requirement.
Meade, 986 F.Supp. at 68. Barnes counters that if, as he contends, the “committed by” language modifies the use of force clause, “Congress could have reasonably viewed the two factual requirements as a single element.” Barnes Br. at 12. Under this view, the use of the singular element is not determinative because a qualifying “misdemeanor crime of domestic violence” simply has one element with two subparts. To be sure, the Congress has used the singular “element” when referring to more than one factor in other provisions of Title 18. See, e.g.,
We are also influenced by the fact that Barnes‘s interpretation of
Under current Federal law, it is illegal for persons convicted of felonies to possess firearms. Yet, many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor.... Often acts of serious spouse abuse are not even considered felonies.... This amendment would close this dangerous loophole and keep guns away from violent individuals who threaten their own families[.]
142 Cong. Rec. S10377-01, *S10377-78 (1996). Fewer than half of the states currently have a “domestic assault” statute that expressly includes as elements both the use of force and a specific relationship between the offender and victim.12 Most states, and the District of Columbia, charge domestic violence offenders under general assault statutes. Under Barnes‘s construction, the Congress remedied one disparity—between felony and misdemeanor domestic violence convictions—while at the same time creating a new disparity among (and sometimes, within) states. A person who abused his spouse in a state with a domestic assault statute would lose the right to possess a firearm while a person who engaged in the same conduct but was convicted of simple assault would not. Moreover, Barnes‘s interpretation would make
The legislative history of the Lautenberg Amendment confirms what the natural meaning of the statutory language reveals, namely that the “has as an element” language refers solely to the use of force. We “do not resort to legislative history to cloud a statutory text that is clear,” which we believe
Mr. President, the final agreement does not merely make it against the law for someone convicted of a misdemeanor crime of domestic violence from possessing firearms. It also incorporates this new category of offenders into the Brady law, which provides for a waiting period for handgun purchases. Under the Brady law, local law enforcement authorities are required to make reasonable efforts to ensure that those who are seeking to purchase a handgun are not prohibited under Federal law from doing so. Mr. President, convictions for domestic violence-related crimes often are for crimes, such as assault, that are not explicitly identified as related to domestic violence. Therefore, it will not always be possible for law enforcement authorities to determine from the face of someone‘s criminal record whether a particular misdemeanor conviction involves domestic violence, as defined in the new law.
142 Cong. Rec. S11872-01, *S11878 (1996) (emphasis added). See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27 (1982) (“remarks ... of the sponsor of the language ultimately enacted, are an authoritative guide to the statute‘s construction“); see also Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1370 n. 6 (D.C.Cir.1990). His statements express the unmistakable intent that a “misdemeanor crime of domestic violence” need not expressly include a domestic relationship element.
The legislative history also reveals that the “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” language was added to the statute shortly before the provision was enacted. Replacing the originally proposed language that defined the predicate offense as a “crime of violence,” Senator Lautenberg explained that the addition of the “as an element” language was not intended to apply to the domestic relationship language:
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. In my view, anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms.
142 Cong. Rec. S11872-01.13 Based on our “natural meaning” reading of the text, we
B. Vagueness
Barnes contends the district court‘s interpretation of
To decide a vagueness challenge, we must assess whether it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” United States v. Lanier, 520 U.S. 259, 266 (1997). We have noted before that “the Constitution does not require unattainable feats of statutory clarity.” Hutchins v. District of Columbia, 188 F.3d 531, 546 (D.C.Cir.1999) (quotations omitted). As the Eighth Circuit in Smith declared, “[w]e would be hard pressed to find an individual of common, or even not so common, intelligence who could not determine whether he was in one of the enumerated relationships when he committed a misdemeanor crime including an element of physical force.” 171 F.3d at 623. Barnes‘s alternative interpretation of the statutory text does not by itself establish vagueness. “Since words, by their nature, are imprecise instruments, even laws that easily survive vagueness challenges may have gray areas at the margins.” United States v. Nason, 269 F.3d 10, 22 (1st Cir.2001) (“use of force” in
C. Due Process
Barnes further argues that
As we already noted,
We conclude that Beavers‘s conviction on a domestic violence offense sufficiently placed him on notice that the government might regulate his ability to own or possess a firearm. As noted in [United States v.] Baker[, 197 F.3d 211 (6th Cir. 1999)] and Meade, domestic abuse is a well-known problem, and it should not surprise anyone that the government has enacted legislation in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future.
206 F.3d at 710. Having been convicted of a violent crime, Barnes had reason to know that the government could regulate his possession of firearms and thus he cannot avail himself of the limited Lambert exception.16
Because domestic violence misdemeanants are not a suspect class for equal protection purposes and because no “fundamental right” is implicated, the classification will be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Fraternal Order of Police v. United States, 173 F.3d 898, 903 (D.C.Cir.1999) (quotations omitted), cert. denied, 528 U.S. 928 (1999). The Congress‘s decision to incorporate state law governing forfeiture of civil rights was rational irrespective of differences among states regarding restoration. Furthermore, the Congress provided other methods such as expungement and pardon that Barnes might use to come within the exception of
For the foregoing reasons, we affirm the district court‘s holding that Barnes‘s conviction of assault under
So ordered.
SENTELLE, Circuit Judge, dissenting:
Defendant Barnes appeals from a judgment sentencing him for the violation of a statute which, in certain part, declares it “unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess ... any firearm....”
The case before us turns on statutory interpretation. If the language of a statute has a “plain and unambiguous meaning,” our inquiry ends so long as the resulting “statutory scheme” is coherent and consistent. United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002). As I read the federal firearms statute at issue, Congress required that the underlying misdemeanor statute of conviction must have had as an element “the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a [speci
The United States argues that Congress‘s use of the word “element,” as opposed to “elements,” means that the gravamen of the underlying offense needs to include only the use of force or threatened use of force with an extra-statutory finding that the forbidden use or threat of force was committed by a person who bears the relevant relationship. This argument has been accepted by our District Court, the majority today, and at least one other circuit. See United States v. Meade, 175 F.3d 215, 219 (1st Cir.1999); see also United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (alluding to the “singular term ‘element‘” but with little supporting or elucidating reasoning). Nonetheless, with due respect to all the judges who have concluded otherwise, I find the argument not only unconvincing, but largely meaningless. For the argument today is not how many elements are involved, but what the singular element is.
As Meade properly describes it, that singular word “element” refers “to the immediately following attribute.” Meade, 175 F.3d at 219. Just so, but so what? The restatement of “element” as “attribute” begs the question of what single element-turned-attribute the statute requires. Just as an element might be either simple or complex and remain a single element, so might an attribute. For example, if a purchaser were to express a strong desire to own a pickup truck which has as an attribute tires manufactured by an American company, that purchaser would not likely be satisfied to sign a contract of purchase specifying only that the truck “have as an attribute tires,” leaving the question of their manufacturer for some discussion outside the contract. We have before us something far more important than a contract of sale. We have a penal statute. Fundamental to our fairness-centered criminal justice system is the rule of lenity for the interpretation of ambiguous penal statutes. See, e.g., United States v. Singleton, 182 F.3d 7, 13 & n. 12 (D.C.Cir.1999) (collecting authorities). Under the rule of lenity, a criminal defendant is, and should be, afforded the benefit of the doubtful application of ambiguous statutory language. It cannot be gainsaid that the language of this statute is ambiguous. The majority opinion itself is rife with allusions to its ambiguity. “[S]ection 921(a)(33)(A) is not a paradigm of precise draftsmanship.” Maj. Op. at 1356. “[I]f the statute read [otherwise], it would be obvious that ‘committed’ modifies ‘offense.‘” Maj. Op. at 1360. “If the Congress had more precisely articulated its intention, our task would have been easier.” Maj. Op. at 1361. “[T]he Congress somewhat awkwardly included the ‘committed by’ phrase in subpart (ii).” Maj. Op. at 1361. The majority‘s grammatical and syntactical analysis defending its interpretation of the statute is quite detailed and quite skilled. But the necessity for such a detailed and skilled analysis itself illustrates the ambiguity of the words construed. I would apply the rule of lenity, and I would reverse the judgment of the District Court.
The supportive arguments offered by the government are equally unconvincing.
As to the argument that the statute as I would construe it applies in fewer states than the statute as construed by the government, I frankly do not see how this proves anything at all. The government admits in its brief that the Supreme Court has held repeatedly that Congress may validly and constitutionally adopt criminal laws that apply differently in different states based upon variances in state law. See, e.g., United States v. Sharpnack, 355 U.S. 286, 293 (1958) (holding that Congress had constitutional authority to pass the Assimilative Crimes Act, making state law applicable to federal enclaves within the states, and citing other statutes that define federal offenses based upon variances in state law); see also United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.1974) (the fact that federal statute prohibiting illegal gambling businesses applies only in states where gambling is illegal “does not result in a denial of equality“).
Finally, the majority stresses an argument based on the use of the word “committed” theorizing that “use of force” is not “committed.” I would note at the outset that this is an argument not made by the parties. As a matter of first principles, I have no problem with that fact. As I have written before, the appropriate question is not whether an argument is raised by the parties, but whether an issue is properly brought before the court. “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Eldred v. Reno, 239 F.3d 372, 384 (D.C.Cir.2001) (Sentelle, J., dissenting) (quoting United States Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993)). However, the majority‘s reliance upon an argument not made by the parties is at least arguably in conflict with circuit law. See Seattle Opera v. NLRB, 292 F.3d 757, at 763 & n.8 (D.C.Cir.2002). Nonetheless, even if we treat the argument as properly before us, I find it unconvincing. I see no reason beyond the majority‘s ipse dixit to conclude that the “use of force” is not “committed” by the related person.
In short, I respectfully dissent.