UNITED STATES OF AMERICA v. DAVID LINEHAN
No. 21-50206
United States Court of Appeals for the Ninth Circuit
December 22, 2022
D.C. Nos. 2:20-cr-00417-ODW-1, 2:20-cr-00417-ODW
Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater, District Judge.
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding
Argued and Submitted May 20, 2022 Pasadena, California
Filed December 22, 2022
Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater,* District Judge.
SUMMARY**
Criminal Law
The panel affirmed David Linehan‘s conviction for soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, in violation of
Section
The panel held that a violation of
The panel held that, as the government now concedes, a violation of
COUNSEL
Elizabeth Richardson-Royer (argued), San Francisco, California, for Defendant-Appellant.
Mark R. Rehe (argued), Carling Donovan, Fred Sheppard, and Daniel E. Zipp, Assistant United States Attorneys; Merrick B. Garland, United States Attorney General, Office of the United States Attorney, San Diego, California, for Plaintiff-Appellee.
OPINION
While in prison on federal charges, David Linehan solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial. The federal solicitation statute,
We hold that a violation of
I
In 1989, David Linehan was involved in a serious car accident in Florida. United States v. Linehan, 835 F. App‘x 914, 915-16 (9th Cir. 2020). David Sims, a Florida State Trooper, arrived at the scene and cited Linehan for careless driving. Linehan disputed the citation, and a state court held a hearing at which Sims testified. The state court found that Linehan was at fault for the accident and fined him less than $200.
Tragically, the other driver in the accident later committed suicide. Linehan, 835 F. App‘x at 916. Linehan came to believe that Sims unfairly blamed him for the other driver‘s death. Id. Linehan‘s automobile insurance policy was also used to compensate the other driver‘s estate. In connection with those proceedings, Linehan was involved in “contentious litigation” over his own culpability for the accident and the other driver‘s death. Somewhat improbably, Linehan developed an obsession with Sims over this incident and spent years harassing and threatening him.
In 2001, Linehan moved to China. He also lived for periods in Thailand, Hong Kong, and Cambodia. While in Asia, Linehan continued his “30-year history of threatening harm to government officials who did not respond to his grievances,” which culminated in Linehan threatening to firebomb the U.S. Embassy in Phnom Penh. Linehan, 835 F. App‘x at 916. This led to his expulsion from Cambodia and his arrest upon returning to the United States. Id. at 915. Sims testified against Linehan at his criminal trial for the Cambodia threats, after which a jury convicted Linehan of transmitting a threat in foreign
While in federal prison, Linehan contacted a fellow inmate whom he believed was soon to be released and asked him to locate Sims‘s residential mailing address for the purpose of mailing a bomb to Sims‘s home. In a series of handwritten messages that spanned nearly a month, Linehan provided instructions to his fellow inmate on how to find Sims and construct an explosive device. Linehan promised to pay the inmate $200 up front, with a further $25,000 payment upon confirmation that the bomb had been sent to Sims. The inmate turned on Linehan, notified the FBI, and agreed to cooperate.
An undercover agent posing as a willing bomber contacted Linehan, and Linehan arranged for the agent to be paid $200 in cash. Linehan and the undercover agent engaged in several recorded conversations during which Linehan confirmed that he wanted the agent to send a bomb to Sims‘s house, and that he would pay $25,000 to see it done. Linehan wanted the bomb to “blow Sims’ f-ing head up” and “rip his lungs out.”
For this, Linehan was charged with a new round of federal offenses: retaliating against a trial witness (Sims), in violation of
Before trial, Linehan moved to dismiss Counts 2 and 3 for failure to state an offense. He argued that the underlying offenses—
The jury acquitted Linehan on Count 1, but convicted him on Counts 2 and 3. Before his sentencing, Linehan renewed his arguments for acquittal for a third time, but the district court again denied his motion. The district court sentenced Linehan to consecutive 60-month sentences on Counts 2 and 3, for a total term of 120 months’ imprisonment, to be followed by three years of supervised release. We review de novo the district court‘s denials of pretrial motions to dismiss and motions for acquittal. United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).
II
Under the federal solicitation provision, which is entitled “Solicitation to commit a crime of violence,”
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned . . . .
Under the categorical approach, we consider not the specific facts of a given conviction but whether the elements of the predicate offense meet the federal definition of a “crime of violence.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). “If any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as . . . [a] predicate.” Borden v. United States, 141 S. Ct. 1817, 1822 (2021) (plurality opinion).
The language used in
Both the solicited offenses here have the necessary mens rea levels (knowledge or higher), for purposes of Borden. See
III
We begin with the transportation of an explosive, in violation of
Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined under this title, or both. . . .
A
Linehan focuses some of his argument on that portion of
We need not explore that issue for the basic reason that Linehan was not convicted of soliciting the attempted transportation of an explosive; he was convicted of soliciting the completed offense. Section
“A statute is divisible when it ‘list[s] elements in the alternative and thereby define[s] multiple crimes.‘” Buck, 23 F.4th at 924 (alterations in original) (quoting Mathis v. United States, 579 U.S. 500, 505 (2016)). But if a statute merely lists “alternative means of committing the same crime,” it is not divisible. Almanza-Arenas v. Lynch, 815 F.3d 469, 478 (9th Cir. 2016)Mathis, 579 U.S. at 505. In this case, we have little difficulty concluding that, at the very least,
Taylor guides our analysis on this point. There, the Supreme Court interpreted the Hobbs Act robbery provision, which, like
Similarly here, in the context of
B
We therefore turn to the language of
The government now effectively concedes that under the Supreme Court‘s recent decision in Taylor,
Assuming the threatened use of physical force is out, we are left with either the actual or attempted use of physical force. We need not decide whether a violation of the completed offense in
1
The “attempted use” component of elements clauses has received little independent consideration in the case law. In part, that may be because pre-Taylor, we treated the attempted version of a crime as a crime of violence if the completed offense was so treated. See United States v. Dominguez, 954 F.3d 1251, 1262 (9th Cir. 2020). But Taylor confirms that analysis is not appropriate. See Taylor, 142 S. Ct. at 2021 (rejecting the government‘s argument that “because completed Hobbs Act robbery qualifies as a crime of violence, it follows that attempted Hobbs Act robbery
does too“). Taylor thus invites a deeper engagement with both attempt offenses and the statutory phrase “attempted use” in an elements clause. The lack of case law on
But the “attempted use” of force comes into play here because
The parties agree that in construing the “attempted use” of physical force under
To constitute a substantial step, conduct “must go beyond mere preparation and must be strongly corroborative of the firmness of a defendant‘s criminal intent.” United States v. Smith, 962 F.2d 923, 930 (9th Cir. 1992) (quotations omitted). That is, “the defendant‘s conduct must (1) advance the criminal purpose charged, and (2) provide some verification of the existence of that purpose.” United States v. Goetzke, 494 F.3d 1231, 1235-36 (9th Cir. 2007) (per curiam) (quoting Walters v. Maass, 45 F.3d 1355, 1358-59 (9th Cir. 1995)).
Transporting or receiving an explosive under
As the last sentence of
Section
To violate
This is consistent with Taylor, which notes that for a predicate offense to qualify as the “‘use’ or ‘attempted use’ of ‘physical force against the person or property of another,‘” the government must “prove that the defendant took specific actions against specific persons or their property.” 142 S. Ct. at 2023. Here,
The example employed in Taylor further illustrates how this case is distinguishable
A completed violation of
Our holding is consistent with our most analogous precedent, United States v. Collins, 109 F.3d 1413 (9th Cir. 1997). There, we considered whether mailing an item with intent to kill or injure another,
In holding that
Linehan, meanwhile, has not identified any case holding that
2
Linehan nonetheless argues that a violation of
Section
Section
intimidate any individual or unlawfully to damage or destroy.”
Although
This does not mean that the phrase “attempted use” of force is without content, however. As we explained above, an “attempted use” of force does require a predicate crime that, at minimum, categorically requires the offender to engage in a substantial step toward the use of violent physical force. Reading
We note, though, that even if Linehan were correct that the “attempted use” of force means that the predicate offense must require a mens rea commensurate with that required for attempt crimes, Linehan‘s argument still fails. Although attempt classically requires specific intent,
Linehan points to authorities noting that a distinction between “purposeful” and “knowing” conduct can be relevant for “inchoate offenses such as attempt and conspiracy.” United States v. Bailey, 444 U.S. 394, 405 (1980). But that distinction is important because “a purposeful mental state may help separate criminal conduct from innocent behavior.” Borden, 141 S. Ct. at 1823 n.3; see also Bailey, 444 U.S. at 405 (explaining that the purpose of a “heightened mental state” for inchoate offenses such as attempt is to “separat[e] criminality itself from otherwise innocuous behavior“).
Here, however,
In sum, when Linehan solicited the completed offense in
IV
We lastly consider whether a violation of
Section
Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended
victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned not more than twenty years, or both . . . .
Although it is natural to assume that when “murder” is referenced in a criminal statute the offense qualifies as a crime of violence, the United States has conceded on appeal that
require[s] only that a defendant travel in, or use a facility of, interstate commerce with the requisite criminal intent; it does not require
that a defendant actually enter into a murder-for-hire agreement, that he carry out or otherwise attempt to accomplish his criminal intent, or that the contemplated murder be attempted or accomplished by another person.
Br. of United States at 9, Grzegorczyk, 142 S. Ct. 2580 (No. 21-5967) (quotations and emphasis omitted).
We agree with this analysis.3 And we further note that our holding here is consistent with those of other courts to have addressed the issue. See United States v. Cordero, 973 F.3d 603, 625-26 (6th Cir. 2020) (agreeing with the government‘s concession that
For these reasons, we reverse Linehan‘s conviction on Count 3 for soliciting a violation of
*
*
*
We affirm Linehan‘s conviction on Count 2, reverse his conviction on Count 3, and remand for resentencing consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.