SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE.
The principal question presented by defendant's motion to dismiss the indictment is whether, under the modified categorical approach, § 39-13-101(a)(2) of the Tennessee assault statute, which is incorporated into the Tennessee domestic assault statute, "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," as required to qualify as "a misdemeanor crime of domestic violence" under 18 U.S.C. § 922(g)(9). Concluding that the use or attempted use of physical force or the threatened use of a deadly weapon is not a necessary element of a § 39-13-101(a)(2) offense, the court grants defendant's motion and dismisses the indictment.
Defendant Christopher Maurice Daniels ("Daniels") is charged in a one-count indictment with the offense of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).
Daniels moves to dismiss the indictment, contending that, as a matter of law, his Tennessee conviction does not qualify as "a misdemeanor crime of domestic violence" and therefore that he cannot be guilty of violating § 922(g)(9). He maintains that "domestic assault" in Tennessee does not categorically constitute a "misdemeanor crime of domestic violence" under federal law because it encompasses conduct broader than the federal definition. Daniels posits that § 39-13-109(a)(2) — which makes it a crime in Tennessee to "[i]ntentionally or knowingly cause[] another to reasonably fear imminent bodily injury" — does not necessarily require the use or attempted use of physical force, or the threatened use of a deadly weapon; that the government cannot narrow the Tennessee domestic assault statute to a qualifying subsection because the statute is not divisible into distinct offenses; and that, even if the statute is divisible, the government cannot narrow Daniels' conviction on the record presented.
The government responds that Tennessee's domestic assault statute is divisible, and that state court documents demonstrate that Daniels was convicted under § 39-13-109(a)(1) — a prong of the statute
Although Daniels does not specify the rule under which he moves to dismiss the indictment, the motion is properly deemed a motion under Fed. R. Crim. P. 12(b)(3)(B)(v) to dismiss the indictment for failure to state an offense. "[A] motion to dismiss an indictment for failure to state an offense is a challenge to the sufficiency of the indictment." United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). When the court decides such a motion, it is required to "`take the allegations of the indictment as true and to determine whether an offense has been stated.'" Id. (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)). "The propriety of granting a motion to dismiss an indictment... by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.... If a question of law is involved, then consideration of the motion is generally proper." United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (internal citation omitted). The parties do not dispute that Daniels' motion to dismiss presents a question of law. And although the government opposes the motion, it does not maintain that the motion is procedurally improper.
Section 922(g)(9) of Title 18, inter alia, makes it "unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm[.]" 18 U.S.C. § 922(g)(9). As used in § 922(g)(9), "misdemeanor crime of domestic violence"
18 U.S.C. § 921(a)(33)(A) (emphasis added).
The indictment alleges that Daniels was convicted of "Domestic Assault" under Tennessee Law.
Tenn. Code Ann. § 39-13-101 (West 2018). Tennessee law further defines "domestic abuse victim" as, inter alia, "[a]dults or minors who are current or former spouses;... live together or who have lived together; [or] ... are dating or who have dated or who have or had a sexual relationship[.]" Id. at § 39-13-111(a)(1)-(3).
When determining whether an underlying state criminal offense has the requisite "elements" to qualify as a predicate offense under a federal statute such as § 922(g)(9), and the state statute is alternatively phrased, the court "follow[s] the analytic approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)." Castleman, 134 S.Ct. at 1413 (examining whether state offense qualified as "misdemeanor crime of domestic violence" under § 922(g)(9) in context of motion to dismiss indictment).
If, however, the state statute sets out separate elements, effectively defining distinct offenses, the statute is divisible. The court then applies the modified categorical approach, in which it "isolate[s] the alternative under which the defendant was convicted and appl[ies] the federal template to only that alternative." Herrold, 883 F.3d at 522. In applying the modified categorical approach to determine the offense to which the defendant pleaded guilty, the court is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual
The court will assume arguendo that § 39-13-101(a) — the assault statute incorporated into the domestic assault offense — is divisible.
In applying the modified categorical approach to a state conviction resulting from a guilty plea, the court must determine whether the plea "necessarily admitted elements" that correspond to the generic federal offense. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; see also Castleman, 134 S.Ct. at 1414. Courts are generally "confined to records of the convicting court approaching the certainty of the record of conviction[.]" Id. at 23, 125 S.Ct. 1254. These include "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Id. at 26, 125 S.Ct. 1254. "The use of these documents is permitted because they are considered sufficiently conclusive and reliable to establish the facts to which the [defendant] actually pleaded guilty." Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006); see also United States v. Montanez-Trejo, 708 Fed.Appx. 161, 167 (5th Cir. 2017) (per curiam).
The government contends that the Shepard documents demonstrate that Daniels was convicted under § 39-13-101(a)(1), which Castleman held is "a misdemeanor crime of domestic violence" under § 922(g)(9). It contends that the sentence Daniels received in the Tennessee court indicates that he was convicted under either § 39-13-101(a)(1) or (a)(2); the affidavit of complaint is a charging document under Tennessee law; the affidavit of complaint paraphrases the language of § 39-13-101(a)(1); and the waiver and plea also support the conclusion that Daniels pleaded guilty to § 39-13-101(a)(1).
Daniels maintains that the modified categorical approach does not allow the court to narrow his conviction to a qualifying subsection of § 39-13-101(a). He posits that the affidavit of complaint is neither a "charging document" nor any other document that the court may consult under Shepard; and that the remaining documents in the record fail to establish the particular prong of § 39-13-101(a) underlying his conviction for domestic assault.
The fundamental inquiry that the Shepard documents seek to answer is
Beyond that, however, the modified categorical approach does not enable the court to determine whether Daniels pleaded guilty to a violation of § 39-13-101(a)(1) or § 39-13-101(a)(2). In the written "Waiver and Plea," Daniels admitted that he was advised and understood "[t]he fact that there must be facts to support the plea"; that "the facts which he knows to exist equal the elements of the charge(s)"; and "that there is a factual basis for his plea." ECF No. 27-1 at 1. In the court's "Order of Accepting Plea of Guilty," it further stated that "the Court concludes that there is a factual basis for the defendant's plea of guilty." Id. at 2. At no point, however, does the document state the factual basis for the plea, the facts to which Daniels stipulated, or which prong of the assault statute constituted "domestic assault." Daniels' admission that "the facts ... equal the elements of the charge(s)" is of no aid when multiple sets of elements could constitute the underlying "domestic assault" offense.
The government contends that the "Affidavit of Complaint" — a sworn statement from the arresting officer that accompanied the arrest warrant — can provide the factual basis for the plea. Fifth Circuit precedent demonstrates, however, why the "Affidavit of Complaint" does not shed light on what elements Daniels necessarily admitted to support his conviction. In United States v. Castillo-Morales, 507 F.3d 873 (5th Cir. 2007), the panel held that the district court properly relied on facts found in a charging affidavit to determine the offense to which the defendant had pleaded guilty. Id. at 877. But it did not hold that the charging affidavit was a proper Shepard document outright. Instead, the panel concluded that, during the plea colloquy, the defendant specifically stipulated to facts "based on `documents in the court file, including the complaint affidavit.'" Id. at 875. Therefore, the defendant had admitted to specific facts that supported the necessary elements of the federal generic offense. Daniels' plea, by contrast, acknowledges the existence of facts generally, but not specific facts that would support a particular prong of § 39-313-101(a). Therefore, the "Affidavit of Complaint" does not assist in the Shepard inquiry here.
The government also maintains that the "Affidavit of Complaint" is a "charging document" under Shepard, and may therefore be examined under the modified categorical approach regardless of the contents of the plea agreement. The court disagrees.
In Tennessee, an affidavit of complaint is "a statement alleging that a person has committed an offense." Tenn. R. Crim. P. 3 (West 2018). It must be in writing, made under oath before a magistrate, and allege the essential facts constituting the offense charged. Id. "If the magistrate is satisfied from the written examination that there is probable cause to believe the offense complained of has been committed and that
Tennessee case law holds that the affidavit of complaint alone is not a "charging instrument." See State v. Shell, 512 S.W.3d 267, 272 (Tenn. Crim. App. 2016); see also State v. McCloud, 310 S.W.3d 851, 860 (Tenn. Crim. App. 2009). As these cases explain, § 40-2-104
The government posits that, even if a Tennessee affidavit of complaint is not a charging document, it still qualifies as a Shepard document generally. The government primarily cites United States v. Jones, 453 F.3d 777 (6th Cir. 2006). In Jones a Sixth Circuit panel held that "[a]n affidavit of complaint is a type of record that a district court can properly rely on in determining the nature of predicate offenses, consistent with the standards of Shepard." Id. at 780. Jones specifically used affidavits of complaint to determine whether the defendant's prior convictions amounted to one criminal episode or three. See id. at 780-81. But this court's prior analysis demonstrates why the "Affidavit of Complaint" in Daniels' case does not identify the elements or facts that he necessarily admitted, which is Shepard's fundamental inquiry. Moreover, Jones does not appear to be controlling in the Sixth Circuit on the issue pertinent to Daniels' case.
Less than one year after Jones was decided, a panel in United States v. Wells, 473 F.3d 640 (6th Cir. 2007), noted that Jones's holding "involved only the limited inquiry of whether prior offenses constitute a single criminal episode or multiple episodes, an inquiry especially suited to resolution by reference to a criminal complaint." Id. at 647 n.5. Subsequent cases explicitly state that "Jones did not address — it had no occasion to address — whether a sentencing court may rely on an affidavit of complaint to determine what kind of conduct a defendant necessarily admitted in pleading guilty." United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir. 2009). The court therefore concludes that the "Affidavit of Complaint" in Daniels' case is not an appropriate Shepard document on its own.
As in Shepard, "[i]n this particular pleaded case, the record is silent on the generic element[s], there being no plea
Because the modified categorical approach does not identify the prong of the Tennessee assault statute of which Daniels was convicted, the court must decide whether both § 39-13-101(a)(1) and (a)(2) "have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon." Castleman establishes that § 39-13-101(a)(1) qualifies as "a misdemeanor crime of domestic violence" under § 922(g)(9). Castleman, 134 S.Ct. at 1408. The court therefore focuses on § 39-13-101(a)(2) alone.
The court "look[s] to the statute of [Daniels'] conviction to determine whether that conviction necessarily `ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.'" Castleman, 134 S.Ct. at 1413 (2014) (third brackets in original) (quoting 18 U.S.C. § 921(a)(33)(A)). "[T]here must be `a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside'" the federal definition of the predicate offense. Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).
To show such a realistic possibility, Daniels "`must at least point to his own case or other cases in which the state courts in fact did apply the statute in the... manner for which he argues.'" United States v. Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc) (quoting Gonzales, 549 U.S. at 193, 127 S.Ct. 815). A defendant must point to an actual state case applying a state statute in a manner broader than the federal definition, "even where the state statute may be plausibly interpreted as broader on its face." Id. at 224 n.4. "[W]ithout supporting state case law, interpreting a state statute's text alone is simply not enough to establish the necessary realistic probability.'" Id. at 223.
Daniels maintains that the second prong of Tennessee's assault statute — § 39-13-101(a)(2), which criminalizes "[i]ntentionally or knowingly caus[ing] another to fear imminent bodily injury" — does not have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; that Castleman strongly suggests that not every type of assault defined by § 39-13-101(a) necessarily fits the federal definition of "a misdemeanor crime of domestic violence"; and that § 921(a)(33)(A)'s text and other courts' decisions demonstrate that the "misdemeanor crime of domestic violence" definition does not include crimes with the threatened use of force as an element.
The government contends that, even if indivisible, § 39-13-111(b) — the Tennessee domestic assault statute — categorically qualifies as "a misdemeanor crime of domestic violence." It posits that Castleman's statement is merely dicta; the Supreme Court has broadly interpreted the definition of "a misdemeanor crime of domestic violence"; virtually all types of actions that would conceivably cause a person to reasonably fear imminent bodily harm involve
In concluding that § 39-13-101(a)(1) was a predicate offense under § 922(g)(9), Castleman held that "Congress incorporated the common law meaning of `force' — namely, offensive touching — in § 921(a)(33)(A)'s definition of a `misdemeanor crime of domestic violence.'"
Because "force" holds its common law meaning, the court examines how the term was used in common law assault and battery. As Castleman and Johnson state, "force" was an element of common law battery satisfied by offensive touching. Castleman, 134 S.Ct. at 1410; Johnson, 559 U.S. at 139, 130 S.Ct. 1265. Common law assault, however, incorporated this term of art differently. At common law, assault was "an attempt or offer to apply force of any kind to another person[.]" R.E. Ross, Russell on Crime 573 (9th ed. 1936); see also 3 W. Blackstone, Commentaries on the Laws of England 120 (1768) ("By assault; which is an attempt or offer to beat another, without touching him[.]"); Stephen, A Digest of the Criminal Law 177 (3d ed. 1883) (defining assault as, inter alia, "an attempt to apply any the least actual force to the person of another directly or indirectly" and "the act of using a gesture towards another giving him reasonably grounds to believe that the person using that gesture meant to apply such actual force to his person"); 1 Hawkins' Pleas of the Crown 110 (8th ed. 1824) ("Hawk. P.C.") ("[A]n assault is an attempt, or offer, with force and violence, to do a corporal hurt to another[.]"). Thus the two methods of committing an assault each involved an inchoate application of force that, if completed, would have constituted a battery or application of force: either by an attempt, or an offer.
Many states, including Tennessee, have now codified this form of assault among their assault and battery statutes.
Daniels has pointed to a case that establishes the realistic probability, not merely a theoretical possibility, that Tennessee would apply § 39-13-101(a)(2) to conduct that falls outside the federal definition of the predicate offense. In State v. McCaleb, 1998 WL 408620 (Tenn. Crim. App. July 22, 1998), the court affirmed a conviction for simple assault under § 39-13-101(a)(2), holding that intentionally raising a fist at another in a threatening manner satisfied the elements of § 39-13-101(a)(2). As the court explained:
Id. at *2 (last alteration added). The court held that, due to "the defendant's threatening speech and gestures," there was sufficient evidence to find that the defendant intentionally caused the victim to fear imminent bodily injury. Id. In other words, the court effectively held that an offense could be committed under § 39-13-101(a)(2) without some form of offensive contact by the defendant or an attempt by the defendant to make physical contact with the victim. Other Tennessee cases also indicate that physical contact is unnecessary. See State v. Smith, 492 S.W.3d 224, 241 (Tenn. 2016) (holding that indictment
The government contends that § 39-13-101(a)(2)'s required physical act — something as slight as clinching one's fist at another — is a "use of physical force." Therefore, it maintains that a conviction under § 39-13-101(a)(2) requires as an element the "use of physical force." The court disagrees.
Castleman and Johnson make clear that "force," as used in § 921(a)(33)(A)(ii), is a common law term of art, satisfied by offensive touching. As the foregoing analysis demonstrates, common law "force" did not describe acts that involved neither direct nor indirect offensive contact between the defendant, his instrument, and a victim. In the assault context, "force" did not encompass the mere physical movements that made an "attempt or offer" of force. As applied to § 39-13-101(a)(2), McCaleb makes clear that any threatening physical movement is sufficient to "cause[] another to reasonably fear bodily injury," even if no physical contact is made or attempted. Therefore, a "use or attempted use of physical force, or the threatened use of a deadly weapon" is not a necessary element of § 39-13-101(a)(2).
This definition of "use or attempted use of physical force" makes sense given the text of § 921(a)(33)(A)(ii). The statute specifies that a "misdemeanor crime of domestic violence" must have one of three possible required elements: (1) a use of physical force; (2) an attempted use of physical force; or (3) the threatened use of a deadly weapon. Because a "use of physical force" requires employing offensive contact, it covers all state statutes that codify common law battery. "Attempted use of force" addresses all attempts at such contact, thereby covering all statutes codifying attempted battery assault. A specific type of threat — threatened use of a deadly weapon — is also covered. On the other hand, if "use of physical force" encompassed any physical act, "attempted use of physical force" would be superfluous; any attempted battery would have already been covered as a "use of force," since any attempted battery requires physical movement. "The Government's reading is thus at odds with one of the most basic interpretive canons, that `[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant[.]'" Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) (second internal citation and quotation marks omitted)). The court follows this basic interpretive cannon here.
By anchoring "use of physical force" in requiring offensive contact, § 921(a)(33)(A)(ii) covers statutes that criminalize common law battery, the attempted battery version of assault, and assaults involving the threatened use of a deadly weapon. Not covering all "intent to frighten" assault statutes appears to be a deliberate choice when compared to the language of nearby statutory text.
The government offers several arguments for why the court is not bound by Castleman. First, it contends that Voisine's broad interpretation of "use" calls for a broader interpretation of "use of physical force." Voisine's holding, however, does not extend this far. The Court did make clear that "use" is not a term of art under the common law, and is to be interpreted according to its plain meaning: the act of employing something. Voisine, 136 S.Ct. at 2278. Therefore, the Court concluded that this understanding of "use" covered reckless uses of force, even though common law battery only criminalized intentional or knowing uses. Id. at 2280. But while Voisine broadened the mens rea encompassed by "use," it did not alter Castleman's requirement of contact in the actus reus of "physical force." Indeed, in both of Voisine's examples of the "use of physical force," there is physical contact between the defendant's instrument and the victim.
The text of the statute and the Supreme Court's definitions aside, the government also contends that requiring "physical contact"
The court does not harbor such concerns here. Voisine, Castleman, and Hayes only noted the potential effects on § 922(g)(9) in support of their separate textual conclusions; the potential effects were never used to support a conclusion that went against the statute's text. See Voisine, 136 S.Ct. at 2278-80; Castleman, 134 S.Ct. at 1410-14; Hayes, 555 U.S. at 420-25, 129 S.Ct. 1079. Here, the statutory text and application of Supreme Court precedent make clear that a "use of physical force" requires some sort of physical contact, and that "attempted use of physical force" requires an attempt to make such physical contact. While it is true that several state statutes might not qualify as misdemeanor crimes of domestic violence as a result, the statutory text suggests that this exclusion is part of Congress' intent.
Moreover, the court's holding does not undermine the effectiveness of § 922(g)(9). The government highlights seven states whose statutes it contends will be rendered ineffective if the court sides with Daniels' position. Of these seven, however, three of the statutes are plainly divisible; they give the "intentional frightening" version of assault a different punishment than other forms of assault. See Ariz. Rev. Stat. Ann § 13-1203(A)(2); Ark. Code Ann. § 5-13-207(a); Mo. Ann. Stat. § 565.056(1). As a result, domestic abusers could still be prosecuted under § 922(g)(9) if they were convicted under other qualifying statutes in these states. And as Castleman notes, "[t]he `assault or battery laws' under which domestic abusers were ... routinely prosecuted' when Congress enacted § 922(g)(9)... fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury and those that prohibit only the latter." Castleman, 134 S.Ct. at 1413 (quoting Hayes, 555 U.S. at 427, 129 S.Ct. 1079). Both categories remain viable under this court's decision. In this way, the court's holding does not make § 922(g)(9) the "dead letter" that the Court sought to avoid in Voisine, Castleman, and Hayes. Therefore, the court is unpersuaded that it should alter its application of the relevant statutory text and Supreme Court precedent.
The government contends that holding that § 39-13-101(a)(2) does not qualify as a misdemeanor crime of domestic violence leads to absurd results. It notes that § 39-13-101(a)(3) qualifies as a misdemeanor crime of domestic violence — it criminalizes "offensive touching" — and is classified as a
First, regardless of the punishments they carry, § 39-13-101(a)(1) and (a)(3) both require some form of physical contact. As the court has explained, § 39-13-101(a)(2) does not. An offense under § 39-13-101(a)(2) can be committed without physical contact.
Second, Congress, in passing § 922(g)(9), and the Tennessee legislature, in establishing punishments for varying forms of assault, were attempting to answer different questions with different goals. In establishing punishments, a legislature may have varying objectives, such as retribution for the offense at issue, deterrence of future offenses, reformation of the offender, among others. On the other hand, Congress, in determining which domestic violence offenders should no longer be permitted to possess firearms, had only one objective: incapacitating an offender's future violent capabilities. See Castleman, 134 S.Ct. at 1408-09; Voisine, 136 S.Ct. at 2275; Hayes, 555 U.S. at 427, 129 S.Ct. 1079. That Congress' definition does not perfectly mirror the escalating severity of Tennessee's assault sentences is likely attributable to different objectives.
Moreover, it would be impossible for Congress to perfectly reflect all states' judgments on the seriousness of the varying forms of assault because these judgments differ. Tennessee chooses to punish "intentional frightening" assault less than "offensive touching." But in Texas, the two offenses receive the same punishment. See Tex. Penal Code Ann. § 22.01 (West 2017). And a number of states choose not to criminalize "intentional frightening" assault at all, instead criminalizing only attempted battery. See, e.g., Cal. Penal Code § 240 (West 2018); Ohio Rev. Code Ann. § 2903.13 (West 2017). Thus the apparent mismatch between one state's sentencing arrangements and the federal consequences for a particular offense does not suggest that the court should part from its application of statutory text and precedent.
The court therefore holds that a "use or attempted use of physical force, or the threatened use of a deadly weapon" is not a necessary element of § 39-13-101(a)(2); that, as a result, Daniels' conviction for "domestic assault" under § 39-13-111(b) did not necessarily include a "use or attempted use of physical force, or the threatened use of a deadly weapon" as an element; and that Daniels' conviction does not therefore qualify as "a misdemeanor crime of domestic violence" under § 922(g)(9). The court grants Daniels' motion and dismisses the indictment for failure to charge a § 922(g)(9) offense.
So far as the court is aware, Daniels is being detained on the instant charge alone. Unless the government can establish otherwise, he is entitled to be released from pretrial detention based on the dismissal of the indictment. In order to provide the government sufficient time to show that there is another lawful reason to detain Daniels, or to seek a stay of this decision in the court of appeals, the court stays Daniels' release for 48 hours, through May 3, 2018 at 1:00 p.m. The stay shall lapse automatically, and Daniels shall be released, unless the court of appeals or this court orders otherwise.
For the reasons explained, the court concludes as a matter of law that the
Tenn. Code Ann. § 40-2-104 (West 2018).
Voisine, 136 S.Ct. at 2279.
