*1 O.L.D., proven allegations if are These Inc.” liability un- establish individual
sufficient to Reves, test is indicates as Reves
der broadly enterprise
construed —that ‘managed’ by others “might ‘operated’ management or upper than
[persons other by upper
lower-rung participants directed enterprise
management] ‘associated with’ Reves, 507 U.S.
who exert control over it.” Thus, the district S.Ct. in- correctly found Friedman and Fell
court Fell, against
dividually judgment liable. course, void for insufficient service
process. judgments against Friedman
The default judg- default are affirmed. The
and O.L.D. reversed, Fell is and the case
ment proceedings for further consistent
remanded opinion. part, part,
AFFIRMED REVERSED
and REMANDED. America,
UNITED STATES
Plaintiff-Appellee, PAGE,
Derek Duane Defendant-
Appellant.
No. 96-4083. Appeals,
United States Court of
Sixth Circuit. Sept.
Argued 23, 1999.
Decided Feb. briefed), Tyack (argued M.
Thomas Columbus, Ohio, Liston, Tyaek, Blackmore & Defendant-Appellant. briefed), (argued and Deborah A. Solove Columbus, Ohio, Attorney, Office U.S. (briefed), Terry Office of the W. Lehmann Cincinnati, Ohio, for Attorney, Plaintiff- Appellee.
326 MARTIN, Judge; protection 40221(a), § Chief
Before: orders. See VAWA MERRITT, KENNEDY, WELLFORD, 1926-31,18 §§ at 108 Stat. U.S.C. 2262. NELSON, RYAN, BOGGS, NORRIS, particularly While concerned SILER, “disproportionately with SUHRHEINRICH, those crimes S.Rep. women,” 103-138, burden DAUGHTREY, at BATCHELDER, MOORE, No. provisions the criminal CLAY, gender-neutral, are COLE, GILMAN, and Circuit gender-neutral and been enforcement has as Judges. See, e.g., Gluzman, well. United States v. (S.D.N.Y.1997) F.Supp. (upholding the ORDER of a for indictment wife the murder of her PER CURIAM. estranged husband in violation 18of U.S.C. (2d Cir.1998). 2261), aff'd, § F.3d equally The en court banc is divided Page, case, Derek in the defendant courtp] Eight in this case. members of § 2261(a)(2), was convicted under 18 U.S.C. join favor affirmance of the district court and illegal any person which makes it for to opinion in Judge concurring Moore’s (pp. spouse or “cause[] intimate to 326-336). Seven members of court[2] force, coercion, ... cross a State line agree Kennedy’s Judge (pp. with dissent and, duress, fraud in or the course or as a 336-338) reverse; Judge Ryan, and would conduct, intentionally result of that commit[ ] (p. 338), writing separately would also re thereby a crime of violence and eause[ ] bodi verse; Judge Wellford would reverse for the ly injury person’s spouse to the or intimate separate opinion stated in (pp. reasons partner.”[1] appeal, ques On he raises 338-340) opin as well as those stated physical tions whether violence that occurs Judges Kennedy Hence, Ryan. ions of and as begins satisfy before interstate travel can circumstances, customary under such “in require ... course conduct” appellant’s conviction and sentence are af § ment of and whether threat of equally firmed divided vote. violence that aggravation results MOORE, Judge, concurring Circuit in the pre-existing injuries can be a “crime of vio order. causing “bodily injury” lence” purposes response “escalating problem As a to the questions the statute. I would answer both recogni- violence women” the affirmative and conclude that there tion of the severe toll such crimes have on was sufficient evidence for to convict society care, our Page theory. Finally, terms “health criminal under either I would justice, costs,” Congress other reject Page’s social argument en- Against acted in 1994 the Violence Women unconstitutional and hold that the statute is a (“VAWA” S.Rep. “Act”). Act or the power No. 103- constitutional of Congress’s exercise at (proposed regulate VAWA of interstate commerce. 1993); 103-322, see Pub.L. No. 108 Stat. I. BACKGROUND (1994). Among 1902-55 numerous oth- provisions, er the Act criminalized interstate The facts of this case are not unlike the many domestic violence and interstate attempt violation of stories of women who to leave Siler, Judge 1. Judges Boggs, Chief Martin and thereby bodily crime of violence and causes Moore, Cole, Daughtrey, Clay, and Gilman. injury spouse partner, such or intimate shall (b). punished provided as in subsection Merritt, Wellford, Nelson, Judges Kennedy, (2) Causing crossing of a State line.—A Norris, Suhrheinrich, and Batchelder. person part- who causes a or intimate 2261(a) ner to cross a line or State to enter or leave The full text of is: force, coercion, duress, country Indian 2261. Interstate domestic and, (a) Offenses.— fraud in the course or as a result of that (1) Crossing conduct, intentionally a State line.—A who crime commits a of vio- travels across a state line or enters leaves thereby bodily lence and causes country injure, Indian rass, with intent to ha- person’s spouse partner, shall be person’s spouse or intimidate that or inti- (b). punished provided in subsection who, partner, mate the course of or as 2261(a). 18 U.S.C. travel, intentionally result such commits a personnel relationships. emergency told room rela- Carla Scrivens’s abusive fairly agreed report had her and tionship out on attacked started bliss- (J.A.) police. incident J.A. at at Appendix ful Joint 302-03 terms. Test, Test, Test, (Friend (Serivens 395-96). Yet, at Serivens soon controlling, possessive, even became abusive, demanding that *3 physically Serivens Page charged kidnaping with in- was and family, associating friends and stop with her violence. first terstate domestic After his eat, controlling what she wear and and could hung jury, trial resulted in a a second her punishing on occasion even disobedi- one acquitted kidnaping him of under 18 U.S.C. gun a stun mace. J.A. at 303- ence with and § 1201 him do- and convicted of interstate Test, 396-400). (Serivens light In of 07 at 2261(a)(2). mestic under 18 violence U.S.C. relationship, of deterioration their rejected Page’s argument, The district court together, three Serivens less than months post-verdict judgment in his motion for a Page moving she out told that was and end- acquittal, that there was insufficient evidence 293-95, relationship. J.A. at 310- ing their support to the verdict because the statute Test, 408-09). (Serivens 376-78, at not) (and, may constitutionally, does not reach occurs be- violence that before travel planned against The attack Serivens took reversed, gins. panel A divided this court place attempted she to her when retrieve holding Page that could be under convicted Page’s belongings, all of which were still only for dur- Columbus, violence committed Ohio. J.A. at 310- condominium Test, (Serivens 408-21, 440). ing the he were time which and Serivens 19, at actually traveling in the arrival, car. See United Page pushed her Upon Scrivens’s 481, vacated, v. Page, States 136 F.3d down, dragged away her from the door when Cir.1998). (6th Concluding F.3d 1049 leave, attempted spray to tried to she and permitted had to (Serivens improperly been 316-17, 322 with mace. J.A. at her Test, consider the attack inside the condominium 424). then beat her at He with underlying as the of violence” “crime fists, hammer, pipe a a claw and wrench his charge, pan- violence interstate domestic over the course several hours. J.A. at Test, id., a new el remanded for trial. See 419-25). (Serivens 317-23 at Serivens granted rehearing F.3d at en banc 488. We gun Page testified used stun also by equally now vote. and affirm divided (Serivens during the assault. at 318-21 J.A. Test, 420-23). beating, Page at After the II. STATUTORY SCOPE victim, carried his who could not walk on her conduct, jury, presented had legs feet and and who fallen as battered scope at times falls within the under several into unconsciousness attack, liability. two evidence placed and into his car least theories of The her under domes- gun. further from his stun showed that he threat of committed Test, (1) when, (Serivens 428). by beating ex- tic his at violence both: J.A. at 326 girlfriend into a state semi-consciousness approximately then drove around for four hours, over the of several he hours, course crossing through state lines West Vir- force state enabled to and did her across ginia Pennsylvania intentionally into in an attempt lines her will to evade hospitals way on passing several local law, when he her to travel forced though pleaded with him to even Serivens violence, threat of intention- interstate under stop for medical at either River- treatment ally obtaining medical preventing her University, hospitals two or Ohio State side treatment, thereby causing aggravation at in the Columbus area. J.A 324- Test, pre-existing injuries. (Serivens 167-68, 426-28, at 434). time, During Serivens continued Bodi- A. “In of’: Infliction of the Course bleed, inju- painful swelling from her ly Injury Integrally Related to (Friend increased. at ries Test, J.A. Transportation of a Victim Forcible Test, at Serivens Lines Across State eventually hospital her at a left where, escape liability under Washington, Pennsylvania, after she order return, 2261(a)(2), Page argues “in the course would not Serivens realized Test, (Scrivens ... J.A. It 426-27). of that conduct” used statute at 324-25 “crossing] refers narrow act of is difficult to believe that State intended purview to exclude from this line” to all conduct involved in statute’s rather than beating partner of an intimate “causing] batterer forcibly force, transports who coercion, then his victim line ... across cross a State duress, state lines under threat of interprets further violence or fraud.” As he the stat- ute, Gaps order to avoid detection from the law. reach the violence he commit- does not inadequacies law condominium, enforcement though ted inside the even among the main were reasons for which fed integral part of conduct was an legislation dealing eral with domestic vio his victim to cross state lines force. This thought necessary. lence was to be plain construction not distorts the lan- prob intended VAWA was to deal guage of the statute but also makes little *4 lem of who batterers make their crimes more reality given sense of the crime and the prosecute by difficult carry to discover and very why Congress reasons believed federal forcing ing partners their intimate across necessary involvement in this area was that S.Rep. state lines. See 43, at No. traditionally has been left to the states. Gluzman, F.Supp. see also 62; at 953 place The crime violence that took inside Those enacted who interstate VAWA’s Page’s beating and condominium the use provision recognized domestic violence precisely of a gun stun and mace is what using batterers were travel interstate Page enabled to force to Scrivens travel system loophole in the law enforce beating across state lines. The subdued his crimes, ment and that such “because of their victim, her in rendered no condition to resist nature, interstate transcend the abilities being physically placed him as she was into S.Rep. agencies.” State law enforcement No. car, frightened severely and her so at When batterers take their any agreed she not to make “commotion” lines, prosecutors victims across state local might attention and aid attract from often subpoenaing encounter difficulties hos they others once left his condominium. J.A. pital and documents witnesses from other Test, 428). (Scrivens at 326 at The attack jurisdiction states. Multi-state is also valu Page also allowed to retain control over Scri- during investigative stage, able in which transportation. vens the forcible Not police local officers encounter similar barri surprisingly, person just has who been Landers, ers. See Renee M. Prosecutorial beaten the manner Scrivens had been is Overlapping Limits on Federal and State far capable physically emotionally less Jurisdiction, 543 Annals Am. Acad. & Pol. attempting escape, formulating a an method (arguing (1996) Soc. Sd. 64, that federal 70 eliciting of escape, aid others. from The jurisdiction appropriate when “offenders beating integral part of the was an forcible jurisdictional seek exploit to limitations transportation since it enabled to force states”); particular Paziotopou- Pamela A. unwilling journey Scrivens on an four-hour los, Against Violence Women Act: Federal of which not destination was revealed to Prosecutors, State Relief for PROSECUTOR, 332, at Scrivens until much later. J.A. 337 May/June (recommending 1996, 20, 24r-25 Test, (Scrivens 434, Consequently, ways prosecutors for state and federal to place the beating Page’s took inside VAWA). coordinate efforts under As it has clearly “in condominium occurred the course” done, Congress often used VAWA “to Page forcibly “causing” “to Scrivens cross aid of in detecting ‘com[e] the states a State line.” punishing criminals whose offenses are Furthermore, law, presented complete evidence under state but who utilize the showed that removed channels of interstate commerce to make precisely from the area getaway local because he successful and thus make the state’s ” consequences feared having detecting punitive processes of his impotent.’ States, harmed knew her and that interstate travel Moskal v. United 110, 498 U.S. 103, police would make more for (quot difficult au- S.Ct. L.Ed.2d 449 112 Sheridan, ing thorities to him for hold liable his crime. United States (alter (1946)) n. pez, L.Ed. 96 Colum.L.Rev. & 38 Court). (1996). Page’s Congress in crabbed assume that intended ation Moskal To terpretation prevent the statute beatings occurring would to criminalize those type precisely the of situation reaching precisely during travel but not those occur- federal domestic violence statute which a ring integrally inside are related a home that needed and that would be sug- forcible interstate travel would be to cover. intended gest missed somehow boat. does, to reach Reading the statute as
violence that occurs but before to violence text of refers transportation, illogical would be forced that occurs in a course of “conduct.” Its light of the nature domestic neighboring statutes demonstrate that Con- developed, crime crimes. As events gress say knew how the course of much “in the of violence was committed as to. “travel” when it wanted addition to lines forcing course” of Scrivens across state violence, Congress interstate domestic has person who an intimate as that of a beats crimes of stalk- created the federal standing driveway partner while ing protection of a interstate violation car, one in a or a who beats foot (interstate §§ order. See 18 U.S.C. 2261A parked at various intimate while (interstate stalking), protec- violation of highway stops. The truth about rest sad order). All *5 tion three of these statutes re- may domestic violence is the batterers quire interstate travel as an element of the intelligent people appear the well who to crime, 2261(a)(2) 2262(a)(2) only § § but and society upstanding, respectable rest of to be forcing involve cross another to state minimum, At are citizens. these batterers parallel, lines. 2262 are Sections and sufficiently intelligent to realize that their prohibiting interstate domestic violence and being held the of chances of liable for abuse order, protection interstate violation of a re- dramatically higher partner an are intimate (a)(1) spectively. of each Subsection section they partners out- when beat their intimate prohibits interstate travel with the intent to driveway neigh- in of side on the front the protec- or a commit domestic violence violate stops populated twenty-four rest bors or at order, respectively. provisions tion In these day, hours a rather than inside the home 2261A, § prohibits travel with and which closed doors and drawn curtains. behind coverage clearly is the intent to harass limit- Congress very appropriately entitled Subtitle ed to violence or harassment that occurs VAWA, B of the which contains the inter- during or after interstate travel: the statutes provision, state domestic violence “Safe “subsequent[ ]” refer to actions that occur to See Pub.L. 103- Homes Women.” No. of or a interstate travel or “in the course as added). 322,108 (emphasis at 1798 One Stat. of See 18 U.S.C. result such travel.” why society long so to reason our has taken 2262(a)(1)(B). 2261(a)(1), 2261A, In §§ con- accept a crime domestic violence as (a)(2) trast, § of both 2261 and subsection society typically the not fact that does specifically § 2262 violations that addresses public among strangers, places occur in but forcing person to and among involve another privacy one’s home of own subsections, only Maloney, these two of all the VAWA partners. E. intimate See Kerrie crimes, This refer to “that conduct.” is a Gender-Motivated Violence the Com- Rights sensible distinction that should not be read merce Clause: The Civil Provision of Violence Against Women Act Lo- out of statute. [2] § Similarly, first of I would not read into the statute violence. The element con- 2. dissenting judges' requirement requirement defen- tains the additional that the defen- purpose intent dant commit a of for the dant travel across state lines “with the crime harass, part- injury, an intimate the victim to travel interstate. Com- or intimidate” contrast, (a)(1) (a)(2) parison § 2261 ner. first element of of subsections In Congress reveals that made a distinction between does not refer the defendant's “causes” the two offenses terms of the defendant's state state of mind but to whether he an partner Each has intimate 2261(a)(2) to cross state lines. Section mind. offense as element “intentionally'' require government the defendant commit crime of does who, drafting history partner §§ 2261 and 2262 furtherance of that injures purpose, between commits an act that further indicates distinction his or spouse partner.... or “that and “such is not acci- intimate conduct” travel” proposed dental. first both When Causing Crossing (b) of State provisions by the defendant treated travel or Any person spouse who causes or Lines.— forcing single of others to travel intimate cross lines as subsection. Section 2261 read follows: force, coercion, and, duress or fraud in the Traveling spousal § 2261. to commit conduct, a result course of that com- abuse injures spouse mits an or her act that partner.... or intimate (a) Any person who trav- GENERAL.— (including another els or causes intend- S.Rep. 102-197, (proposed at 17 No. victim) ed to travel across State lines or in 1991). language VAWA This 1991 is sub- who, during commerce and stantially which the same as that any thereafter, such course of travel parallel change enacted in 1994. A was injures does an his or her act S.Rep. Compare made to No. 101- partner.... S.Rep. at 16 with at 17-18. No. S.Rep. (1990) (proposed that, unlikely No. It in separating subsections (a) Thus, (b) VAWA of first draft fo- carelessly the drafters exclusively on cused travel with the intent to changed travel” “such to “that conduct” and clearly harm. This version would have failed repeated then mistake in Rath- before, er, to reach they violence that occurred but I believe that substituted “that con- to, integrally related they forcible travel. meaning duct” because intended dif- ferent from travel.” “such year, changes The next several were made changes to this text. Two of these are relat- later, years Report Two the Senate ed and directly to each other relevant to this accompanied the 1993 version VAWA in- *6 First, by § the offense ease.[3] created appears support cluded one statement that offenses, was into two one divided criminaliz- 2261(a)(2). § interpretation of The ing purpose travel for the of com- report states statute “covers cases mitting domestic violence and the other crim- spouse where the defendant has forced or Second, inalizing forced interstate travel. lines, partner intimate to cross State and these two offenses were differentiated the during or abuse the occurs course of in one reference to “such travel” and in the Rep. or as a of result this travel.” S. No. other to “that conduct.” new The version of 103-138, clearly at 61. This statement was the statute was: statutory intended as a restatement of the Traveling spousal § language, to commit but it used the word “travel” in- unexplained abuse stead of “conduct.” This and apparently inadvertent one-word difference (a) Any person who travels General. — statutory between the text and a statement lines— across State legislative history trump the does the (1) who, in the of or and course as a plain of the meaning statute. result of commits an act such that injures spouse or her part- Page , despite contends that the clear mean- ner; or ing lenity § requires of the rule of purpose harassing, impose for the intimi- that interpreta- the court a narrow However, dating, injuring lenity applies or tion. only intimate the rule of prove Page pur- that attacked for the the statute Scrivens more clear-cut and limited it to cases pose taking Pennsylvania her to or even actually that would involve interstate enforce- he knew his actions were her to cross problems. ment (1991) See at 17 S.Rep. No. state lines at the moment it occurred. (proposed VAWAof It does not my analysis against charges Page, affect major change 3. The other was that drafters undisputed since it is took that he Scrivens removed in interstate "or commerce” from the across state lines. statute, proposed leaving “travel across change application state lines.” This made precise require outer bounds us to decide persists about doubt reasonable when “a the reach of 2261. scope even resort intended statute’s structure, legislative histo- language and ‘the Aggravation of of’: B. “In the Course motivating polices’ of the statute.” ry, and Injuries During Forced Interstate (quot- Moskal, at 111 S.Ct. 498 U.S. States, Travel 447 U.S. ing v. United Bifulco (1980)) 66 L.Ed.2d evidence to con- there was sufficient While is not original). A statute (emphasis in Page the attack inside the on the basis of vict “merely [is] ambiguous because deemed condominium, presented also government more a construction possible to articulate using theory that threats of to the its urged the Government” narrow than that already severely force an further violence to judges disagree because reasonable lines, injured intimate across Id. interpretations of the statute. them inju- her thereby causing aggravation clear, Here, statutory language is and ries, causing “bodily is a “crime of violence” interpretation most consis- government’s person in violation of injury” to that remedying statutory purpose of tent with 2261(a)(2). (Closing Tr. at 699-700 Trial inadequacies prosecution in state gaps argues government Arguments). The partners. intimate crimes between Pennsylva- trip to Page’s threats injury” “bodily to the extent nia resulted in court’s instructions The district receiving medi- they kept 2261(a)(2). language of J.A. tracked the aggravated treatment sooner cal 716). Page has not (Jury Instructions agree can preexisting that threats wounds. any specific flaw in the instruc- pointed out violence,” aggravation of be a “crime of tions, statutory language permitted and the injuries “bodily injury,” can be pre-existing forcibly caused Scrivens conviction evidence to was sufficient there attack inside lines and the cross state theory. convict under part of “that conduct.” condominium instructions, includes “an offense A “crime of violence” object than Rather use, attempted language that has as an element jury that the argued to the use, physical use of force or threatened the attack inside instructions did not reach property of another.” person or 686- Trial Tr. at the condominium. 16(a). may also be an offense Conference, It Closing Arguments). 18 U.S.C. (Charge that, nature, felony its turn, theo- “that presented its government, *7 physical that force a risk involves substantial ry and the interstate travel that the attack property of another against person the or single conduct. part of a course of were committing of the may in the course (Closing Argu- used 698-700 Trial Tr. at 16(b). § To meet this ments). described, 18 was offense.” U.S.C. I have Scrivens As definition, required to attack, government was the she completely incapacitated the or some state prove Page that committed continuously from Page’s control was under was of and that this offense federal condominium until “offense” just after she entered the (b). 16(a) § The two type or Pennsylvania described emer- after he left her the jury were kid- considered room, Page to offenses that the the attack enabled gency (Jury In- at 434 naping and assault. J.A. against forcibly from Ohio remove Scrivens 719). presented The evidence structions at are more than suffi- will. These facts gun Page to use a stun threatened jury that was that to conclude cient for a reasonable coop- to obtain her against order during the at- Scrivens injuries suffered Scrivens state being transported across causing of eration inflicted in the course tack were gun pocket coercion, kept the in his force, stun or lines. lines her to cross state easy knew he had and made certain Scrivens was not error for It therefore duress. at 326 during the ride. J.A. to it jury access to allow the to consider district court Test, 428). Moreover, (Scrivens while was Because there conviction on that basis. interstate, Page threatened to they support a traveled evidence to more than sufficient leave her car and to case, out of the push not Scrivens this case would this conviction 332 him, no one crime would
on the side of the road where would have been considered Test, (Scrivens find her. J.A. at 334 “menacing” ever rather than under “assault” Ohio 436). However, on particular law.[5] facts of accomplished this case threats an assault argument, Page the en oral At banc they prevented from ob because Scrivens claimed that this conduct could be the thereby taining medical attention and caused underlying “crime of for the inter- violence” injury. her to suffer further I am therefore charge domestic violence because jury satisfied that could have found that are not Ohio threats “assault” under law. physical harm to with attempt- caused Ohio defines “assault” as meaning ing physical another. in the of the Ohio State to cause harm to See statute. Cf. (Banks-Bald- Brooks, 185, 636, § 2903.13 44 Ohio St.3d 542 N.E.2d ANN. Ohio Rev.Code Supp.1998); 1994 (1989) win West & (holding brandishing 642-43 that Ohio Rev. cf. menace). § Ank. (defining 2903.22 weapon attempted constitute Code can assault jury given the of was Ohio definition assault coupled “strongly with other conduct corro instructed that and was “crime violence” harm); physical borative” of intent to cause means: Green, 239, 58 State v. Ohio St.3d N.E.2d use, offense that (1991) has as an element the (explaining corro attempted physi- use or use of threatened borative conduct can include threats “verbal person property cal force perceived by a as reasonable under or conduct which its another nature circumstances”). fact, theory this presents potential physical serious risk depended jury finding conviction on the that injury to another. of violence in- Crime physical threats caused to Scri- harm kidnaping cludes and assault. vens, government prove, because the had (Jury J.A. at Instructions at Part separate as a element of vio the domestic this instruction misstates 18 U.S.C. conviction, lence that the threats caused Scri- 16(b) by failing specify felonies “bodily injury.” vens to suffer are classified crimes of violence on the Alternatively, jury could have found by requiring of their basis inherent risk and to be kidnaping underlying of vio crime injury” there “physical be a risk of Although acquitted lence. merely than physical rather a risk force “that charge, may However, kidnaping acquittal does not ... be used.” error require Kidnaping harmless. were us assume that the did not assault only possible rely upon kidnaping underlying crimes of violence offered to the as the crime 719); jury. (Jury J.A. at 434 Instructions at of violence conviction. Arguments). (Closing Trial Tr. at Powell, States v. See United 67- Kidnaping 16(b); felony is a and satisfies S.Ct. L.Ed.2d 461 16(a).[4] satisfies assault acquittal (holding predicate crime does not undermine a com conviction for Page’s argument appeal on that his con- pound stating crime is no “there leaving duct after the condominium was not *8 merely [the] reason to vacate conviction be “assault” overlooks the fact that this conduct physical rationally caused harm to If cause the verdicts cannot recon Scrivens. his be merely ciled”); threats had caused to fear Scrivens see also United Gaitan- States v. Although possible "Menacing” “knowingly it is to die caus[ing] read district another to jury permitting court’s instructions as to find physical believe that offender will cause limiting a "crime of violence” without itself to person.” harm to the 2903.22. Ohio Rev.Code assault, kidnaping parties' closing either Menacing satisfies the "crime of definition of instructions, arguments, conjunction with the 16(a) in 18 violence” U.S.C. consid- and is also made clear that those two were the crimes ered an of violence law. See offense under Ohio Moreover, object choices. did not to the However, 2901.01(A)(9)(a). be- Ohio Rev.Code court’s district except definition of "crime of violence” cause the was not instructed on elements argue kidnaping to that on these facts menacing, predicate I do not consider it as a not be a crime of Trial Tr. at could violence. Conference), crime which the based its (Charge (Jury on could have 639-45 727 Instruc- tions). conviction.
333
Cir.1998)
(6th
suggest
does the statute
that the
Acevedo,
Nowhere
F.3d
injury
bodily injury
newly
an
inflict-
must be
conspiracy despite
(affirming conviction
ed,
prior
completely
from
crimi-
distinct
charge),
de
cert.
acquittal on substantive
—
nal
of the batterer. Such a limitation
-,
actions
nied,
119 S.Ct.
U.S.
If
to
would make little sense.
we were
re-
(1998).[6]
L.Ed.2d
injury
“fresh” in
to
quire that an
order
proving
commit-
addition to
statute,
satisfy
Page’s actions would not
during
assault
kidnaping
a
or an
ted
a crime of interstate domestic vio-
constitute
obtain a conviction
in order to
actual
lence even if
had bled to death or
Scrivens
theory,
aggravation-of-injury
under its
gone
of[7]
into shock
and as
result
kidnaping
prove
to
government had
transportation. Page’s interpre-
the forcible
bodily
to suffer
or assault caused Scrivens
prevent
tation would also
the statute from
“bodily injury”
injury.
statute defines
The
reaching
at
the conduct
issue
United
act,
self-defense,
“any
except one done in
(4th Cir.),
Bailey, 112
States v.
F.3d 758
cert.
physical
or sexual
results
—
denied,
-,
§ 2266. The district
abuse.”
18 U.S.C.
(1997).
Bailey
L.Ed.2d 170
The defendant
definition, requiring
beyond this
court went
wife,
injured
car,
severely
put her in a
government
prove
that Scrivens suf-
Virginia and
and drove around West
Ken-
instance,
injury; for
“significant
fered
taking
tucky
days before
her to a
for five
painful and
or is of a
injury that is
obvious
hospital.
inju-
The victim suffered further
ordinarily
attention
type for which medical
loss,
including
perma-
ries
blood
which led to
sought.”
(Jury
would be
J.A. at 434
Instruc-
damage,
dehydration,
nent brain
which
719).
government presented
tions at
led to renal failure due to
defendant’s
testimony
“dripping blood
that Scrivens was
provide
failure
obtain medical care or
ade-
emergency room floor” when she
onto the
ques-
quate food and
There was no
water.[8]
hospital
at the
several hours after the
arrived
Yet,
Bailey
applied.
tion in
that the statute
significant
beating
that she lost a
amount
between a
there is no relevant distinction
blood,'
to lose conscious-
which caused her
prevents
person
forcibly
his intimate
who
trip.
during the extended
J.A.
ness at times
care, causing
obtaining medical
partner from
Test,
(Friend
215, 217,
159, 161,
at
at
death;
person
forcibly
who
her to bleed to
Test,
437).
at
There was also testi-
partner
prevents his diabetic intimate
from
mony
wounds were so swollen
that Scrivens’s
shots,
obtaining
causing her to fall
insulin
delay
hospital
getting
coma;
from the
forcibly pre-
and a
who
into
emergency
personnel had
call an IV
obtaining
room
vents his intimate
at
specialist
get
team to
an IV into her. J.A.
days, causing
food and water for several
Test,
175).
(Friend
experienced
Any prior
She
criminal
to suffer renal failure.
throughout
trip.
way
great pain
J.A. at 335
actions of these batterers should
no
Test,
(Scrivens
pain
negate
The additional
that these
weaken or
the observation
delay
potentially
analogous
and the
dan-
and that in all
caused
three situations are
certainly “bodily
has commit-
gerous loss of blood were
of these scenarios the batterer
causing bodily
a crime
harm.
injury.”
ted
time,
might.
In other
disposes
he
as interstate travel
6. This rule also
claim that
words,
vio-
cannot be convicted of interstate domestic
have to take
a crime of violence does not
kidnaping acquittal necessarily
lence because the
completely
place
ends in order
after the travel
being
taken
means that Scrivens consented
across state
say
the crime of violence was the
for one to
lines.
result of the travel.
*9
injuries Scrivens suffered due to
7. The additional
Bailey
obtaining
8.The
victim in
also had bruises on her
Page's preventing her from
medical
ankles,
bound,
"in the course" of the forced
care were both
where she had been
wrists
"new,” i.e.,
travel and the "result” of that forced
interstate
may
injuries
have been
and these
(Y)
(X)
travel. An event
that results from another
Bailey,
began.
See
inflicted after
travel
necessarily
The be-
does not
ginning
need to follow it.
however,
think,
at 762.
I do not
F.3d
precede
event
of event X can
the end of
injuries alone.
conviction rested on those
Y,
lengthy period
especially
spans
when event Y
172,
164,
(1941),
note as well
the seriousness of the
62 S.Ct.
similarly constitutional under the Commerce
III. CONSTITUTIONALITY
Clause because the interstate domestic vio-
provision’s requirement
lence
of “the cross-
Lopez,
United
States
514 U.S.
ing of a
plac[es]
state line ...
[commis-
549, 558,
115 S.Ct.
335
shipment
products
bar the interstate
commerce. See
of interstate
the channels
669,
Robertson,
“really” trying
labor because it was
v.
514 U.S.
of child
United States
(1995)
1732,
v.
670,
prohibit
L.Ed.2d 714
child labor itself. See Hammer
131
115 S.Ct.
251,
effects” test
38
Dagenhart,
the “substantial
247 U.S.
S.Ct.
(explaining that
(1918),
Congress’s power
Dar
the extent
ment of a man who beats a woman before the
journey begins
y.
purpose
unless
course his
CONCLUSION
inflicting bodily injury
is to cause her to
Because
is a
18 U.S.C.
valid
provision
cross states lines. The
therefore
powers
Congress’s
exercise of
under
criminalizes an act of domestic violence that
Commerce Clause and reaches those situa-
actually
occurs before interstate travel
be-
beating
partner
tions where
of an intimate
gins only if the violence is the same “force”
integrally
subsequent
related to the
trans-
employs
that the attacker
to cause his victim
portation
of the victim across state lines
against
to cross state lines
her will and the
force,
affirming Page’s
I
concur
the order
purpose
attacker’s
at the time he inflicts the
conviction and sentence.
transport
is to
his victim across state
lines.
KENNEDY,
Judge, dissenting
Circuit
The construction I have described above
the order.
appears to
meaning
be the obvious
agree
part
Judge
with that
Moore’s
law,
statute.
In criminal
we should not
opinion
Congress validly
that concludes
en-
give
penal
strain to
a broad construction to a
Against
acted the Violence
Women Act under
Anglo-American
statute. For centuries in
power.
agree,
its commerce
I cannot
howev-
law,
lenity
the rule
required
has
a strict
er,
Page’s pre-travel
that the Act criminalizes
construction of criminal statutes. United
this case and his conviction should
Lanier,
259, -,
States v.
520 U.S.
be reversed.
(1997)
1219, 1225,
S.Ct.
person’s spouse
intentionally commits a crime of violence Congress actually adopted
enter or leave Indian
course or as a result
[4]
coercion, duress,
punished
thereby
causes
provided
fraud
bodily injury
country
[2]
subsection
partner,
conduct,
and,
by force,
in the
shall
(b).
[3]
more
to our own view of what
mestic violence
As
panel’s opinion in
force the statute
Judge
comprehensive statutory policy
Merritt
according
explained
case,
might
women.” United
and not
to the words that
“[w]e
in the
be a better or
according
must en
original
on do
(6th
Page,
States v.
136 F.3d
Cir.
(Emphasis
18 U.S.C.
num-
added).
bering
precise reading
Judge
A literal or
of the words of
Moore concludes that because Seri-
sentence,
sequence
completely incapacitated by
and the
of elements
vens was
attack,
begun.
agree
had
I could then
under
control continu-
lines
she was
*12
ously
by
time she entered the condo-
from the
attack is covered
the statute.
lines,
state
and that
minium until she crossed
causing
While
someone to cross state lines
jury
permitted the
to find that
this somehow
encompasses
simply
broader conduct than
in
in
injuries
suffered
the attack
the
the
she
lines,
traveling across state
still there must
were inflicted
the course
condominium
jury
be some evidence from
the
could
which
causing her to cross state
While
lines.!1]
find the connection between the earlier vio-
injuries
any
agree that
inflicted before
travel
“causing”
and
victim to travel.
lence
the
part
begins can be
to be a
of “that
found
important,
accept
More
even
to
were we
if
to cause the victim to
conduct”
inflicted
statute,
Judge
reading
Moore’s
of the
the
lines,
here
cross state
there is no evidence
jury
injuries
was never instructed that the
any
injuries
that such intent caused
part
causing
had to
be inflicted as
her
placed
sustained before she was
Scrivens
government’s closing argument
travel. The
the car.
that it was all the “same course of conduct”
in this case
that
Were the evidence
such
proper
is not a
for a
instruction.
substitute
seventy
that the
the
could conclude
sum,
plain language
In
the
of section
the attack was to enable
to take Scri-
2261(a)(2)
Congress
not in
shows
did
hospital,
across state lines to a distant
vens
apply
tend the statute to
to those attacks
agree
then I could
that conduct was covered
where,
fact,
the
the
defendant decides
statute. But the record does not
the
wrong
to use interstate travel to conceal his
support
finding
attack in
the con-
doing. By
suggest
no means do I
purpose.
Judge
Con
dominium had such a
As
“Furthermore,
acknowledges:
gress
evi-
have
con
Moore
should not
criminalized such
presented
Indeed,
particularly disturbing
dence
showed
duct.
Page removed
from the local area
facts of cases such as
and United States
consequences
precisely because he feared the
Bailey suggest
v.
that it would not have been
having
and
of his
harmed her
knew
illogical
flight
criminalize
state lines
to
across
interstate travel would make it more difficult
apprehension.[2]
to avoid
As enacted
police
to hold him liable for
authorities
however,
Congress,
requires
the Act
the at
his crime.”
tacker to intend to cause interstate travel.
provision
applies
to
issue
situations
any
If there were some evidence that
“force, coercion,
where
or fraud” on
duress
particular injuries
inflicted on Scrivens
part
triggers
inter
of the defendant
merely
prevent
inflicted not
to
her es-
were
travel, and then sometime in the course
condominium,
state
cape
specifically
but
causing
the victim to
a result
transport
to
her
order to make
easier
lines,
juror
the defendant commits a crime of violence
across state
could find that
bodily injury
her to cross
and inflicts
on the victim. Sad-
defendant’s effort to cause
state
including
Bailey
Judge
appears
evasive
Moore
to be
in "that
The defendant’s
behavior
any
control that
followed
particularly egregious.
conduct"
continuous
The defendant attacked
regard
crossing
bedroom,
of a state line without
to
inflicting
injuries
their
head
his wife in
intent.
the defendant’s
significant
and
her to lose a
amount of
letting
blood. After
her lie there for “an extend-
Only
arising
prosecutions
two other
under
period,”
the car
ed
he locked her in the trunk of
appeal
have
the courts of
to
reached
and drove her back and forth between West
(4th
Bailey,
date: United
Cir.),
There was no this case not make it had to proven, particularly physical applied assault or force was to Scri- where the did occurred, Circuit, holding explicitly in- on the kidnapping had for our conclude linesj1] Judge opinion authority Kravitch’s taking volving forceful across state Wright, v. 117 F.3d United States addition, skepticism some about share (11th Cir.1997), implicitly on upon is based purportedly which this statute dissenting reasoning Jus- advocated if the gender violence. What concern about “ not alter Lopez, ‘Lopez did tices Page’s former wife in this were victim ease determining approach our whether relationship at the time whom he had no scope particular falls statute within if it had been another of the offense? What authority.’” Congress’s Commerce Clause relative, his wife nor intimate neither female C.J., 974, 975, (Luttig, dis- F.3d such an offense partner? Prosecution senting). any by Page would have been female it has been handled handled the states as con- Accordingly, I would REVERSE battery, long of assault and before eases case, may realizing viction in this being. See Brzonkala statute came into civilly,for prosecuted, still be sued and/or Institute, 132 F.3d Virginia Polytechnic actions in Ohio state court. (4th Cir.1997) (concluding that the passes muster because statute constitutional gender have motivated
“crimes on interstate
a substantial adverse effect
commerce”). language note used is not I also HARDIN, Plaintiff-Appellant, Katie R. *15 violence, motivated domes- that crimes of discord, have substantial tic abuse v. I would call
effect on interstate commerce. SON, INC., & S.C. JOHNSON attention, regard, Brzonkala Defendant-Appellee. statement: dissent’s No. 98-2058. entirely overarching change Ignoring analysis wrought by in Commerce Clause Appeals, States Court of United Lopez [514 U.S. Seventh Circuit. (1995)], majority merely L.Ed.2d Argued Dec. 1998. recites several statements House and general problem committees on the Senate Decided Jan. of violence women the effect Rehearing Rehearing Suggestion economy.... that violence on the national Denied En Banc March majority’s deference to a wholesale finding at least under- committee would had ex-
standable that committee made findings deserving of
tensive deference.
However, majority ultimately sustains constitutionality literally of the Act on single appearing
the basis of a sentence is, report, which
that committee sentence
itself, entirely conclusory. short, reads, majority opinion decided,
intended, Lopez as if were never (4th jury’s acquittal on Bailey, view of the States 112 F.3d Cir. violence” in 1. United 1997), majority says distinguished charge, yet “the could have kidnapping be VAWA underlying crime required kidnapping to be the "a found cause the former acquit Surely kidnap and convict partner" at 767. violence.” Can both as victim. Id. charge? not. ping "underlying based on the same I think this case cannot be the crime