Lead Opinion
Affirmed by published opinion. Judge DIAZ wrote the-opinion, in which Judge SHEDD and Judge HARRIS joined.. Judge SHEDD wrote a separate concurring opinion. ■
Thomas Faulls was convicted of kidnapping in violation! of 18 .U.S.C. § 1201(a)(1), interstate domestic violence in violation of 18 U.S.C. § 2261(a)(2) and (b)(4), and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). The district court • sentenced Faulls to 295 months’.imprisonment and also- -required him to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16911 et seq:
On appeal, Faulls contends that his counsel was ineffective in opening the door to testimony by a government expert, and in; failing to' object :to the district court’s decision to keep the jury late one evening. He also ’-contends that the district court erred'in admitting prior acts evidence and in requiring him to register as a sex-of-féndér. For the reasons that follow, we affirm. .....
I.'
We recite the relevant evidence in the light most favorable to the government. United States v. Seidman,
A.
Thomas.and Lori Faulls were married for about twenty-five years; they had two children. Their marriage was volatile, and they separated in June 2012.
Following their separation, the couple’s interactions were marked by a series of violent episodes, three of which are relevant here. On June 28, 2012, Lori re
Shortly after, this incident,, Lori- moved to Williamsburg, Virginia, to live .with, her daughter Britnee. In mid-August 201.2, Faulls ■ came to Britnee’s. apartment and confronted her- for not, answering his calls (the “Williamsburg incident”). When Brit-nee tried to call 911, Faulls attacked the women and took their cell phones and car keys. Faulls allowed Britnee to leave, but he repeatedly demanded that Lori return home. Eventually, Lori was able to convince Faulls to leave the apartment.
The third incident resulted "in Faulls’s convictions. Ón August 22, 2012, Lori drove Faulls to a repair shop, purportedly to pick up his truck. In fact, the truck was parked behind the marital home. On the way, Faulls pretended to call the shop to see if his truck was ready, but he actually called one of the. couple’s children, knowing that no one would answer. Faulls told Lori that the truck was not ready and they returned to the house, where Lori declined his- invitation to come inside. Faulls became angry and revealed that his truck had been parked behind the house the whole time. He took Lori’s cell phone and car keys, then showed her a pair of zip ties that had been fashioned into handcuffs. He asked Lori whether she “wanted to do this the easy way or the hard way.” J.A. 215. Faulls then ordered her into the truck, where Lori saw his shotgun in the backseat. Faulls locked the passenger door, and before driving away, threw Lori’s cell phone out the window. That night, Faulls and Lori stayed at a hotel in Elkins, West Virginia, nearly 200 miles from Mineral.
The next morning, Faulls sought to have sex with ,Lori. Lori told him that she was uncomfortable but eventually acquiesced out of fear., That day, Faulls and Lori went to several stores, .where Lori bought clpthes and hygiene products. They also stopped at a,liquor store and purchased a bottle of vodka.
That evening, Faulls and Lori went to a restaurant and bar. Faulls got drunk and told patrons,pitting nearby that Lori was his wife- and that he had kidnapped her. The pair left shortly thereafter and, after discovering that there were no rooms available at a nearby hotel, began walking back toward the truck. At that point, Lori fled. She saw two women getting into a car and asked them to take her to the police. The women drove her to the sheriffs office, where Lori reported what had happened to her.
B.
Prior to trial, the district court preliminarily denied the government’s motion to
The expert’s testimony focused on her research regarding intimate partner violence, risk factors involved with this type of violence, and the psychological components of abuse. She did not testify that Lori had been a. victim of domestic violence, and the court addressed the jury before the testimony to emphasize that, the expert had never interviewed or examined Lori.
The district court also allowed the government to introduce evidence of the Mineral and Williamsburg incidents under Federal Rule of Evidence 404(b). The court twice gave the jury a limiting instruction regarding this evidence, stating that it could be considered only to prove “the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in connection with” Faulls’s charges, but not as evidence of Faulls’s character or propensity to commit the offenses. J.A. 200, 402.
At the end of the first day of trial, weather reports forecast a snowstorm that threatened a delay in the proceedings. The lawyers did not want Lori to testify over two days, so the court asked the jurors if they would be willing to .stay late to complete her testimony. Faulls’s counsel did not object, and though at least one juror did not want to stay late, the court chose to complete the testimony that evening. The court adjourned at 7:40 PM.
The jury convicted Faulls of kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence. The jury also determined that Faulls committed aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(2), which served as the predicate crime of violence for the interstate domestic violence charge and also enhanced Faulls’s sentencing range. Thé district court further enhanced Faulls’s sentencing range after it determined that Faulls obstructed justice when he called his mother from jail and asked her to convince Lori not to testify.
II.
A.
Wé‘first consider Faulls’s ' argument that he’ was denied effective assistance of counsel, an issue we review de novo. United States v. Hall,
We decline to reach Faulls’s claim. Unless an attorney’s ineffectiveness conclusively appears on the face of the record,
B.
Next, we consider .whether the district court correctly admitted prior acts evidence under Rule 4Q4(b). We review evidentiary rulings for abuse of discretion, United States v. Queen,
Faulls asserts that the district court should not have admitted testimony regarding the Mineral and Williamsburg incidents because the evidence was neither relevant nor necessary to the charges. Alternatively, Faulls argues that the probative value of the evidence was substantially outweighed by its prejudicial effect because the evidence (if believed) demonstrated a pattern of domestic violence.
Evidence of prior wrongs is not admissible “to prove a person’s character in order to show that on a particular occasion the person acted in accordance.'with the character.” Fed.R.Evid. 404(b)(1). However, such evidence may be admissible for other purposes, including to show motive, opportunity, intent, preparation, or plan. Id: 404(b)(2). Prior act evidence is also admissible under Rule 404(b) to show the victim’s state of mind. E.g., United States v. Powers,
To be admissible under any theory, the prior act evidence must be “(1) relevant to an issue other than character; (2) necessary; and (3) reliable.” United States v. Siegel,
We discern no error in the district court’s evidentiary rulings.- First, the evidence was relevant to- issues-other than character or propensity. A jury could reasonably conclude that Faulls’s motive with respect to the Mineral and Williamsburg incidents was to stop Lori from leaving the marital home or, generally, the marriage. That same jury could conclude that Faulls committed the charged offenses because he was again upset that Lori wanted to leave the marital home and rejected his invitation to come inside.
A jury could also reasonably conclude that -the evidence demonstrated Faulls’s control and domination over Lori, which was necessary to explain Lori’s state of mind and her apparent willingness to-remain with Faulls during the events leading
Finally, we conclude that the probative value of the evidence was not substantially outweighed by the. danger of unfair prejudice to Faulls. The evidence was -highly probative, as it demonstrated Faulls’s domination over Lori, his motive for committing the offense,s, and; Lori’s state, of mind throughout the ordeal. Additionally; the district court gave the jury clear limiting instructions. — reminding the jury that it should not . .consider the evidence to prove Faulls’s character or his propensity to commit the charged offenses — which obviated the danger of prejudice.
C.
Last, we consider whether the district court correctly required Faulls to register as a sex offender based on his conviction for interstate domestic violence.
The parties dispute whether Faulls preserved this claim for appeal, and the resolution of this preliminary question directs our standard of review. Usually, we review a district court’s imposition of. special conditions of supervised release for abuse of discretion. United States v. Holman,
1..
' Faulls contends that the district court should not have reached the question of whether his conviction- for interstate domestic violence was a sex offense because the government gave “no clear indication that this- should be a sex offender case based on the [Department of JusticeJ’s own guidelines.” Appellant’s Br. at 24. If by this Faulls means that the government did not urge the district court to impose SORNA registration as a condition of supervised release, he is mistaken. If, on the other hand, Faulls means that the Department of Justice-Guidelines require the government to give notice, he has not pointed this court to such a requirement, and we -have not found one. In any event, Faulls cannot credibly claim to have been surprised by the issue, given that the district court’s local standing order directs the probation officer to determine whether sex offender registration is appropriate, and gives the court discretion to -impose the condition' of supervised release at sentencing., • > -
2.
Turning to the merits of the imposed condition, sex offenders are required to register in every jurisdiction in which the offender ■ resides, works, and attends school. 42 U.S.C. § 16913(a). A séx offender is someone who is convicted of a sex offense, which--in relevant part is-defined as a criminal offense that “has an
■ Faulls contends that because interstate domestic violence is not one of the enumerated crimes that qualifies as a sex offense under SORNA, see § 16911 (5)(A)(iii), the inquiry ends there, and the district court erred. Faulls is incorrect, however, because the statute also provides other definitions of a sex offense, including an offense with an element “involving a sexual act or sexual contact with another.” § 16911(5)(A)(i). ...
The government says that Faulls’s interstate domestic-violence conviction satisfies this definition. The government’s argument begins with the offense- elements of .interstate domestic violence, which are (1) the defendant and victim are spouses or intimate pártners; (2). the defendant caused 'the victim to travel in interstate commerce by force, coercion, duress,, or fraud; (3) the defendant, in the course of or. to facilitate such travel, committed a crime of violence against the victim; and (4) the defendant committed such acts knowingly and willfully. 18 U.S.C. § 2261(a)(2).-.Here, the government alleged kidnapping under § 1201(a)(1) and aggravated sexual abuse under § 2241(a)(2) as the underlying crimes ' of • violence. The jury convicted Faulls of kidnapping and also found beyond a reasonable doubt that Faulls had committed aggravated sexual abuse.
Interstate domestic violence also contains a penalty enhancement for offenders whose ■ qualifying violent conduct constitutes sexual abuse under chapter. 109A, including- aggravated sexual abuse. See §§ 2241, 2261(b)(4).- Because, the jury found that Faulls committed aggravated sexual abuse, he faced an increased statutory maximum penalty ranging from five years’ imprisonment to “any term of years or life” imprisonment. §§ 2241(a), 2261(b)(4)-(5).
The government contends that the statutory enhancement is an “element” of the interstate domestic violence offense under Apprendi v. New Jersey,
3.
The Constitution' requires a jury to find, beyond a reasonable doubt, the elements of the criminal offense charged. In Apprendi,- the Supreme Court held that this bedrock principle also applies to sentencing, declaring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the.prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In Alleyne v. United States, the Court extended this rule to facts that increase the prescribed statutory minimum penalty — i.e., facts that establish a new or higher mandatory minimum sentence. — U.S. -,
Here, the jury found Faulls guilty of interstate domestic violence. For purposes of enhancing Faulls’s sentence, the jury also found beyond a reasonable doubt that Faulls had committed aggravated sexual abuse. Relying on Apprendi and Al-leyne, the government contends that the jury’s finding also necessarily means that aggravated sexual abuse is an element of the charged interstate domestic violence offense for purposes of SORNA. We do not agree. The fact that a jury made the finding necessary for the sentencing enhancement certainly cures any Apprendi issue, but it does not answer the statutory question of whether that same ‘finding is an “element” of Faulls’s “offense” under § 16911(5)(A)(i).
The government directs us to United States v. Campbell,
Accordingly, we must look elsewhere for guidance. Recall that for SORNA’s sex-offender registration requirements to properly apply to Faulls, he must have been convicted of a “criminal offense that has an element involving a sexual act or sexual contact with another.” 42 U.S.C. § 16911(5)(A)(i) (emphasis added). Recently,, in United States v. Price,
Other courts of appeals have also found these frameworks relevant to the determination of what constitutes a sex-offense under SORNA, although- none has squarely applied them in the precise context before us. See United States v. Rogers,
Thus, we “focus[ ] solely on the elements” of interstate domestic- violence, rather than .on “the specific way in which [Faulls] committed the crime,” to determine whether interstate domestic violence qualifies as a criminal offense with an element involving a sexual act or contact. Price, 777 F.3d at 704-05 (quoting Nijhawan v. Holder,
The modified categorical approach is almost identical, but it applies only to divisible statutes — those containing alternative elements — and it entails a brief “de
Under either approach, we compare the elements of interstate domestic violence with the generic offense — here, SORNA’s definition of a sex offense: “a criminal offense that has as an element involving a sexual act or sexual contact with another.” 42 U.S.C. § 16911(5)(A)(i). As relevant, to be convicted of interstate domestic violence, the defendant must, commit an underlying crime of violence against a spouse or intimate-partner victim. See 18 U.S.C. § 2261(a)(2). A crime of violence is defined as . . . .....
[A]n offense that has an element the use, attempted use,, or threatened use of physical force against the person or property of another, or any other offense that is a felony and, that, by it¡s nature, involves a substantial risk thát physical force against the person or property of another may be used in the course of committing the offense.
§ 16.
It is well, established that some sex offenses qualify as crimes of violence. See U.S. Sentencing Guidelines Manual § 4B1.2, comment. (n.l) (U.S. Sentencing Comm’n '■ 2012) [hereinafter U.S.S.G. § 4B1.2] (including “forcible-sex offenses” in the enumerated list of established crimes of violence); United States v. Peterson,
As a, result, we consider whether interstate domestic violence is divisible for purposes of the modified categorical approach, meaning it must “set[] out one or more elements of, the offense in the alternative.” Descamps,
In -deciding whether a Maryland child abuse conviction constituted, a crime of violence for sentencing purposes, we said that the disjunctive state'statute was “generally divisible” because the offender could be either a family member or an individual with responsibility for the child’s supervision, either physical ábtíse or sexual abuse constituted the abuse element of the statute, and 'sexual abuse could- be alternatively defined as sexual molestation or sexual exploitation; Id. at 352 (defining the elements of-Md.Code-Ann., Crim. Law § 35C). But general divisibility, we said, was not enough: “[0]nly if at least one of the categories into which the statute may be divided constitutes, by its elements, [the generic federal offense]” is the statute divisible “for purposes of applying the modified categorical approach.” Id, Because -no arrangement of the state child-abuse statute’s alternative elements lined up with the elements.of a crime of.violence, we found the statute indivisible. Id.
Applying these cases to the particular statute before us, we hold that Faulls’s crime of conviction encompasses, by its crime of violence element, additional, alternative offense elements, “effectively creating] several different crimes.” Descamps,
Admittedly, the. offense of interstate domestic violence presents an unusual set of circumstances -for the divisibility analysis. To. begin with, the offense does not set out on its face, in the disjunctive or otherwise, a. list of alternative crimes .that constitute the offense, but rather requires the defendant to commit an underlying “crime of violence.” This case also requires that we compare a contemporaneous federal conviction — rather than (as is more typical) a prior, state conviction — to the generic federal offense. . ■, ¡
But these anomalies have no bearing on the modified categorical approach’s application here. See United States v. Ortiz-Gomez,
Treating interstate domestic violence as divisible for purposes of the modified categorical approach dovetails with the inquiry’s function and harmonizes its purpose. “The point of the categorical inquiry [after all] is hot to determine whether the defendant’s conduct could support a conviction for a [sex offense], but to determine whether the defendant was in fact convicted of a crime that qualifies as a [sex offense],” Cabrera-Umanzor,
Here, without looking to the relevant documents in the record, we would have no way of knowing whether Faulls’s conviction constitutes a sex offense because we do not know from the facial elements of § 2261(a)(2) what underlying offense substantiated the finding of domestic violence. But when we look to the jury instructions and the indictment, we see that the underlying crime of violence — aggravated sexual abuse — and its elements were put to the jury and found unanimously beyond a reasonable doubt. See Supp’l J.A. 615, 650-55; J.A. 11. This analysis thus furthers the categorical framework’s purpose-without frustrating its goal' of “avoiding] conducting ‘mini-trials’ for each prior offense.” United States v. Gomez,
Our interpretation also comports' with our past practice. See, e.g., United States v. Rivers,
Our holding also aligns with SORNA’s legislative goal of “strengthening] and increasing] the effectiveness of ... sex offender registration and notification [for the protection of the public]”. United States v. Gould,
In sum, because aggravated sexual abuse “involv[es] a sexual act or sexual contact with another,” Faulls was convicted of a criminal offense that “has an element involving a sexual act or sexual contact with another” — a sex offense. 42 U.S.C. § 16911(5)(A)(i). Accordingly, the district court did not err in requiring Faulls to register as a sex offender under SORNA.
III.
For the reasons given, we affirm the district court’s judgment.
AFFIRMED
Notes
. Lori told police that she wasn’t sure if it was an accident or if Faulls acted intentionally because she “was scared to death.” J.A. 198-99. . -
. Lori did not report this incident to the police.
. Cf. United States v. Berry,
. The district court did not have the benefit of our decision in Price, and neither party on appeal has urged that we apply the elements-based approach to determine whether Faulls was convicted of a sex offense. Although we generally do not consider issues not passed upon below, the question before us is purely one of law, and we perceive no injustice or unfair surprise in doing so here. See Singleton v. Wulff,
. And as Judge Shedd’s concurrence notes, we have applied the categorical approach to instant offenses when determining whether the defendant should be sentenced as a “career offender” under the Sentencing Guidelines for having committed a "crime of violence.” See United States v. Johnson,
Concurrence Opinion
concurring:
The majority applies the categorical approach to determine if Faulls’s conviction for interstate domestic violence is a “sex offense” under 42 U.S.C. § 16911(5)(A)(i). Regardless of-whether the categorical approach should apply to past convictions under this section, if I were deciding this issue on a clean slate, I would not apply it in the context of this case, which involves an instant offense. As the Tenth Circuit has explained, “the practical difficulties of conducting an ad hoc mini-trial” that drive us to apply the categorical approach to a past- conviction “do not apply when the court is examining the conduct of the defendant in the instant offense.” United States v. Riggans,
The categorical approach does not save judicial resources because we are continuously called upon to determine -whether past convictions — on a state-by-state basis — qualify as predicate offenses in multiple contexts, 'including sentencing. This situation has left “[t]he dockets of our court ... clogged with these cases.” United States v. Vann,
Notwithstanding my view, however, circuit precedent rejects this distinction between past convictions and instant offenses. See United States v. Johnson,