UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE HARRISON, Defendant-Appellant.
No. 21-6146
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 1, 2022
File Name: 22a0257p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:19-cr-00143-1—Karen K. Caldwell, District Judge.
Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges.
COUNSEL
ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant. Sangita K. Rao, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Emily K. Greenfield, UNITED STATES ATTORNEY‘S OFFICE, Lexington, Kentucky, for Appellee.
THAPAR, J., delivered the opinion of the court in which SUTTON, C.J., joined in full and COLE, J., joined in part. COLE, J. (pp. 9–16), delivered a separate opinion concurring in Parts I and II and in the judgment.
THAPAR, Circuit Judge. George Harrison was convicted of drug and firearms offenses after an informant filmed him selling methamphetamine. He now challenges his conviction and sentence. We affirm.
I.
On three occasions, Harrison sold methamphetamine to B.B., a confidential informant who recorded the transactions on video. Based in part on those videos, police arrested Harrison.
B.B. passed away before trial, so he was unable to testify about the controlled buys. As a substitute, the government played B.B.‘s videos of the transactions for the jury, over Harrison‘s objection, though recordings of statements from B.B. to law-enforcement personnel wеre excluded on Sixth Amendment grounds. The jury convicted Harrison on three counts of distributing methamphetamine, one count of possessing with intent to sell 500 grams or more of methamphetamine, and one count of being a felon in possession of a firearm.
At sentencing, the district court agreed with the government that Harrison‘s prior conviction for complicity to commit murder was a serious violent felony, rejecting Harrison‘s argument to the contrary. Thus, Harrison was subject to a sentencing enhancement, raising his mandatory minimum on the possession-with-intent-to-sell count from ten years to fifteen.
II.
The Confrontation Clause guarantees every criminal defendant the right “to be confronted with the witnesses against him.”
B.B.‘s statements to Harrison and other non-law-enforcement personnel are testimonial. A statement is testimonial when its purpose is to be used against the defendant. Crawford v. Washington, 541 U.S. 36, 51–52 (2004). And we‘ve previously held that since confidential informants’ statements are intended for use against the defendant, they are testimonial. United States v. Cromer, 389 F.3d 662, 670 (6th Cir. 2004).
But B.B.‘s statements to Harrison and non-law-enforcement personnel aren‘t hearsay. Hearsay is generally any statement made out of court that‘s used in court for its truth.
In fact, it‘s not clear from the record that the government used B.B.‘s statements at all. True, the videos were admitted into evidence. But B.B.‘s statements were only a small part of the videos, and the government didn‘t make those statements part of its case. Instead, the government focused on Harrison‘s statements and actions, which are undisputedly admissible, not B.B.‘s.
Furthеr, to the extent that B.B.‘s statements were used in court, they weren‘t used for their truth. They were used only to give context to Harrison‘s admissible words and actions. See United States v. Jones, 205 F. App‘x 327, 342 (6th Cir. 2006). For instance, during the second controlled buy, Harrison and B.B. discussed Harrison‘s methamphetamine. Harrison described where he got the drugs, what they looked like when he received them, and how he handled them before selling them. B.B. compared the vacuum-sealed packaging Harrison‘s drugs came in with other methods of packaging he‘d seen. His statement was about how various drugs were packaged, not аbout Harrison‘s drug dealing. And the government didn‘t offer that statement for its truth; the type of packaging B.B. had seen elsewhere was irrelevant to the government. The government only admitted it as part of a “reciprocal and integrated” conversation in which Harrison described receiving and selling methamphetamine. See Jones, 205 F. App‘x at 342.
Harrison hasn‘t pointed to any of B.B.‘s statements in the videos that were used for their truth. And since there is no indication in the record that the government offered any of B.B.‘s statements for their truth, Harrison hasn‘t shown a Confrontation Clause violation.
Harrison disagrees, reasoning that hearsay is an out-of-court statement offered “for the truth of the matter asserted,” that “the matter asserted” by the government at trial was Harrison‘s guilt, and that B.B.‘s statements were offered as part of
Because B.B.‘s statements in the videos weren‘t offered for their truth, they weren‘t hearsay. So their introduction into evidence didn‘t violate Harrison‘s rights under the Confrontation Clause.
III.
Harrison also argues that the district court improperly enhanced his sentence based on his prior Kentucky conviction for complicity to commit murder. Specifically, hе contends that complicity to commit murder isn‘t a “serious violent felony” because it doesn‘t involve the “use, attempted use, or threatened use of force.” See
A.
First, some background. One of Harrison‘s convictions was for possession of methamphetamine with intent to sell. The statutory minimum penalty for that offense is typically ten years’ imprisonment.
A “serious violent felony” includes any offense described by
offense with a maximum sentence of ten years or more that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
In deciding this issue, we‘re obligated to apply the categorical approach. So the facts underlying Harrison‘s complicity conviction don‘t matter; instead, we ask whether the elements of Kentucky‘s complicity statute include the use of force. See Descamps v. United States, 570 U.S. 254, 261 (2013). One of the requirements of a conviction for complicity is that the underlying offense actually occurs. See
B.
With all that in mind, the question we ask under the categorical approach is: Is it
No. Complicity to commit murder always requires the use of physical force, because murder always requires the use of physical force. A person is only guilty of murder in Kentuсky if he causes the death of another, either intentionally or by “wantonly engag[ing] in conduct which creates a grave risk of death.” See
A victim dies only if some “physical force” damages his body so severely that the body no longer functions. That physical force—the physical force exerted on the body to cause injury—is what courts look to when categorizing crimes of violence. See Johnson v. United States, 559 U.S. 133, 140 (2010); Raybon v. United States, 867 F.3d 625, 632 (6th Cir. 2017). The physical force exerted on the bоdy isn‘t always the same as the force applied directly by the criminal. For instance, a shooting involves physical force not because of the force it takes for the shooter to pull the trigger, but because of the force it takes for the bullet to injure the victim‘s body.
With that understanding of physical force in mind, a murderer must always “use” physical force to cause death. In explaining why, we need not consider every conceivable method of committing murder. See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 191 (2013); United States v. Rumley, 952 F.3d 538, 550 (4th Cir. 2020). And to be sure, a murderer can employ force in a variety of ways. But “use оf force” can refer to both direct uses, like strangling the victim, and indirect uses, like pulling a trigger to shoot the victim. United States v. Castleman, 572 U.S. 157, 170–71 (2014). So in every murder, the murderer uses physical force in some way to cause a death.
That‘s true even when murder is carried out by omission rather than commission. For instance, if a parent intentionally fails to give his child food, his child will die of starvation. At first blush, the parent‘s failure to act doesn‘t seem forceful. But the type of omission that constitutes murder—omission that intentionally or wantonly causes the death of another—still uses physical force as section 3559 requires. The malicious parent uses the force that lack of food exerts on the body to kill his child.
That interpretation of “use of force” reflects the general principle that in criminal law, omission in the face of a legal duty is a type of action. See, e.g., 2 Wayne R. LaFave, Substantive Criminal Law § 15.4(b) (3d ed. 2022 Update); Model Penal Code § 2.01. When Congress passed section 3559, we presume it did so with the background principles of criminal law in mind. See Samantar v. Yousuf, 560 U.S. 305, 320 & n.13 (2010). So it makes sense that section 3559 would incorporate the criminal-law understanding that omissions can be types of actions.2
Because murder requires the use of physical force, a Kentucky conviction for
Because complicity to commit murder is a violent felony under section 3559, the district court properly enhanced Harrison‘s sentence.
C.
Harrison has two final objections. First, he argues that a recent Supreme Court opinion precludes application of the enhancement here. See Borden v. United States, 141 S. Ct. 1817 (2021). The Borden plurality held that crimes requiring only recklessness don‘t require the “use of physical force.”
Second, Harrison argues that a defendant convicted of complicity to commit murder doesn‘t have to use force himself, so even if murder requires the use of physical force, complicity to commit murder doesn‘t. Not so. Section 3559 requires “the use, attempted use, or threatened use of force.”
* * *
We affirm.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE HARRISON, Defendant-Appellant.
No. 21-6146
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
COLE, Circuit Judge, concurring in part (Parts I and II) and concurring in the judgment. Because he contends that complicity to commit murder is not a “serious violent felony,” Harrison objects to his enhanced sentence based on a prior conviction for this felony. While I disagree, and therefore agree with the majority that we should affirm Harrison‘s sentence, I write separately as to Part III to address a lingering culpability question, which bleeds into the use-of-force analysis.
A. Legal Standard
We review whether a prior conviction qualifies as a serious violent felony de novo. See United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014). An offense qualifies as a “serious violent felony” under this sentencing enhancement if it (1) resulted in a term of imprisonment of more than twelve months,
So, Harrison can only be subject to the sentencing enhancement if his prior conviction for complicity to commit murder satisfies the elements clause. His offense, then, must have “as an element the use, attempted use, or threatened use of physical force against the person of another.”
B. Level of Culpability
Following the Supreme Court‘s decision in Borden v. United States, 141 S. Ct. 1817 (2021), we start with an analysis of the mens rea required for Harrison‘s prior felony. After Borden, the elements clause includes offenses committed by “purposeful and knowing acts, but excludes reckless conduct.”
Importantly, Borden explicitly withheld comment on this question, acknowledging a spectrum of culpability between recklessness—not enough for a serious violent felony—and knowledge—sufficient for a serious violent felony—not before the Court in that case.
Nor has our circuit answered directly. Recently, we required the “knowing or intentional use, attempted use, or threatened use of force” for an underlying offense to be a “crime of violence” under the similarly-worded Sentencing Guidelines career-offender enhancement. Butts, 40 F.4th at 771. A year prior, we quoted Borden as requiring “a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.” United States v. Brenner, 3 F.4th 305, 307 (6th Cir. 2021) (quoting Borden, 141 S. Ct. at 1830). Albeit instructive inasmuch as both focus on whether an offense requires purpose or knowledge, neither is dispositive here, as both ultimately found the underlying offenses could be committed with a mere reckless use of force. See Butts, 40 F.4th at 772; Brenner, 3 F.4th at 307. So, we turn to the specifics of the Kentucky statutes at issue.
Bearing in mind that we must “presume that the conviction rested upon nothing more than the least of the acts criminalized” by the Kentucky complicity statute, Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013), we focus our analysis there.
“Complicity is simply the means of committing another crime,” and is an avenue of imposing liability on an accomplice as if they had committed the principal offense. K.R. v. Commonwealth of Ky., 360 S.W.3d 179, 187 (Ky. 2012). An individual can be found guilty of complicity based on either the principal actor‘s conduct itself or its result.
An individual can be convicted of murder under Kentucky law if they caused the death of another person with one of two accompanying culpabilities: (1) “intent to cause the death,” or (2) “wanton[] engage[ment] in conduct which creates a grave risk of death.”
When placed on the spectrum of culpability, the wantonness provision of Kentucky‘s murder statute falls in the range between ordinary recklessness and knowledge. See
Kentucky courts have considered acting with such an extreme indifference to human life to be as culpable as knowing or intentional conduct. See e.g., Brown v. Commonwealth of Ky., 975 S.W.2d 922, 923 (Ky. 1998) (“To punish wanton conduct as murder, it must be conduct as culpable as intentional murder.“). As has the Supreme Court. See e.g., Tison v. Arizona, 481 U.S. 137, 157 (1987) (“This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an ‘intent to kill.’ Indeed it is for this very reason that the common law and modern criminal codes alike have classified behavior such as occurred in this cаse along with intentional murders.“). So, too, have authorities cited by both of these courts. See id. (citing G. Fletcher, Rethinking Criminal Law § 6.5, pp. 447–48 (1978)) (“[I]n the common law, intentional killing is not the only basis for establishing the most egregious form of criminal homicide[.] For example, the Model Penal Code treats reckless killing, ‘manifesting extreme indifference to the value of human life,’ as equivalent to purposeful and knowing killing” (first alteration in original)); see Brown, 975 S.W.2d at 923–24 (citing Kentucky Penal Code commentary and the Model Penal Code).
Under a categorical approach, we must also look “beyond the theoretical to the reality of prosecutions.” Moncrieffe, 569 U.S. at 191. If there is “a realistic probability, not a theoretical possibility, that [Kentucky] would apply its statute to conduct that falls outside . . . the post-Borden definition of a crime of violence,” then such a convictiоn is not a crime of violence under the elements clause. Butts, 40 F.4th at 772–73 (internal quotations omitted) (quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). As there appears to be no such case where an individual has been convicted of complicity to commit murder based on pure recklessness, we are unable to say that such a reasonable probability exists, even if such a theoretical possibility does, as Harrison posits. This is particularly true as the line between wanton murder—functionally indistinguishable from knowledge or intent—and wanton manslaughter—more like mere recklessness—turns on the “extreme indifference to human life” prong, inasmuch as the trier of fact endorses something above mere recklessness by convicting someone of murder as opposed to manslaughter. See
Therefore, while I do not categorically conclude that Borden requires only a mens rea above mere recklessness, based on the above, I conclude that Kentucky murder—and therefore complicity to commit murder—is not precluded from being a serious violent felony under Borden.
C. Use, Attempted Use, or Threatened Use of Force
Because Harrison‘s prior conviction is not precluded from being a serious violent felony under Borden based on its mens rea alone, we move on to determine if the leаst culpable murder “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
A conviction for conspiracy requires the commission of the underlying offense—here, murder—by another actor. See
This force need not be direct physical force; indirect means and acts of omission can still be considered uses of force. As the majority notes, the “use of force” involved in a shooting that results in death is the force from the bullet into the victim‘s body, not the pulling of the trigger. United States v. Castleman, 572 U.S. 157, 170–71 (2014). Same goes for the “use of force” involved in death by starvation through the intentional withholding of food from a child or death by putting poison in another‘s drink. See
And the force need not be exerted by the defendant. All the elements clause requires is that the offense—here, complicity to commit murder—necessarily involve the use of force. See
* * *
Kentucky murder requires a level of culpability almost indistinguishable from knowledge or intent, and necessarily entails the use of force, either by an affirmative act or act by omission. Therefore, Kentucky murder is a “serious violent felony” under the sentencing enhancement relevant here. Because a conviction for complicity to commit murder еncompasses the elements of murder, such a conviction then also qualifies as a serious violent felony. Therefore, the district court‘s sentencing enhancement was appropriate, and I would also affirm.