269 F.3d 10 (1st Cir. 2001), 01-1440, United States v. Nason Jr

Docket Nº:01-1440
Citation:269 F.3d 10
Party Name:UNITED STATES OF AMERICA, Appellee, v. ROBERT E. NASON, JR., Defendant, Appellant.
Case Date:October 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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269 F.3d 10 (1st Cir. 2001)



ROBERT E. NASON, JR., Defendant, Appellant.

No. 01-1440

United States Court of Appeals, First Circuit

October 19, 2001

Heard Sept. 14, 2001


[Hon. George Z. Singal, U.S. District Judge]

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Joseph M. Baldacci for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Stahl, Senior Circuit Judge, and Doumar,[*] Senior District Judge.

SELYA, Circuit Judge.

This appeal requires us to resolve an interpretive schism that has divided the district courts. This schism involves the interplay between a state assault statute and a federal law barring misdemeanants who have committed crimes of domestic violence from possessing firearms. The crux of the controversy is whether "offensive physical contact," one of the two variants of assault featured in Maine's general-purpose assault statute, necessarily involves the use or attempted use of physical force. If so, prior convictions under that statute can qualify as predicate offenses for purposes of the federal

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statute prohibiting persons previously convicted of misdemeanor crimes of domestic violence from possessing firearms (18 U.S.C. § 922(g)(9)). If not, such misdemeanants -- at least those whose convictions are not readily identifiable as involving more than offensive physical contact -- may well escape the strictures of the federal law.

Based upon our construal and reconciliation, we conclude that Congress intended the federal law to cover all persons who have been convicted of assaulting domestic partners in circumstances similar to those delineated by both strains of the Maine statute. Accordingly, we affirm the conviction and sentence imposed in the case at hand.


On July 6, 1998, authorities in Somerset County, Maine, lodged a state criminal complaint against Robert Nason, Jr., the appellant here, alleging that he "did intentionally, knowingly, or recklessly cause bodily injury or offensive physical contact to one Beth Nason [his wife]," in violation of Maine's general-purpose assault statute, Me. Rev. Stat. Ann. tit. 17-A, § 207. Pertinently, that statute provides (as it has since 1975) that a person can be guilty of misdemeanor assault in one of two ways, namely, (1) "if he intentionally, knowingly, or recklessly causes bodily injury . . . to another," or (2) "if he intentionally, knowingly, or recklessly causes . . . offensive physical contact to another." Id. § 207(1). The appellant pled guilty to a charge that made no differentiation between these two variants. He received a three-day jail sentence.

On January 18, 2000, the appellant pawned a rifle at the Norridgewock trading post. Nearly one month later, he redeemed it. When thereafter questioned by a Maine state trooper, the appellant exhibited the rifle and admitted that he previously had pawned it. He also showed the trooper a cache consisting of five additional firearms.

In due course, a federal grand jury charged the appellant with violating 18 U.S.C. § 922(g)(9).1 The indictment alleged in substance that the appellant, having been convicted of a misdemeanor crime of domestic violence (the Somerset County assault conviction), thereafter knowingly possessed a firearm (the rifle). The appellant pled guilty to this charge before Judge Singal, but, before the imposition of sentence, a different district judge handed down an opinion that cast doubt upon the validity of the charge. See United States v. Southers, No. 00-83, slip op. (D. Me. Jan. 3, 2001). We recount the circumstances of that case.

Southers had entered a plea of nolo contendere to a criminal complaint charging him with violating Maine's general-purpose assault statute by "intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact" to a domestic partner (in Southers's case, a live-in girlfriend). Federal authorities thereafter charged him with violating 18 U.S.C. § 922(g)(9). Southers moved to dismiss the federal indictment. Judge Hornby reasoned that the mode of aggression component of section 922(g)(9) necessitated the use or attempted use of physical

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force; that Southers's undifferentiated assault conviction may have involved offensive physical contact rather than bodily injury; that the section of Maine's disjunctive general-purpose assault statute covering "offensive physical contact" did not categorically presuppose the use of physical force; and that, even if the particular assault complaint lodged against Southers contained language sufficient to support a finding that physical force had been used, such force nonetheless was not a formal element of offensive physical contact under the Maine statute. These rulings collectively undermined the government's argument that all persons convicted of assaults on domestic partners under Maine's general-purpose assault statute necessarily had committed misdemeanor crimes of domestic violence within the purview of 18 U.S.C. § 922(g)(9). Accordingly, Judge Hornby dismissed the indictment.2

Emboldened by the Southers decision, the appellant moved to withdraw his guilty plea and dismiss the federal indictment. Judge Singal declined to follow Southers. See United States v. Nason, No. 00-CR-37, slip op. (D. Me. Feb. 13, 2001). The judge concluded that physical force was a sine qua non of assault under both variants of Maine's general-purpose assault statute; that the statute, in all its applications, entailed physical force as a formal element; and that, therefore, all persons convicted of assaults on domestic partners under the statute necessarily had committed misdemeanor crimes of domestic violence within the purview of 18 U.S.C. § 922(g)(9).

Refined to bare essence, this appeal questions whether both forms of assault covered by Maine's disjunctive general-purpose assault statute (bodily injury and offensive physical contact) necessarily include physical force as a formal element (and, therefore, suffice to ground charges under the federal misdemeanant-in-possession statute). To resolve this question, we first erect a decisional framework (Part II). We then undertake an exegesis of the relevant state and federal statutes (Part III) and reconcile them (Part IV). Finally, we consider the appellant's vagueness claim (Part V), and then conclude (Part VI).


The diametrically opposite conclusions reached by respected trial judges about how best to synthesize the relevant statutes stem from a fundamental disagreement concerning the appropriate decisional framework. One view, shared by the Southers court and the appellant, advocates an application of the categorical mode of analysis set forth in Taylor v. United States, 495 U.S. 575, 599-602 (1990). The other view, shared by the Nason court and the government, eschews Taylor's categorical approach in favor of an examination of the formal definitions of the pertinent state and federal statutes. Since this discord centers on Taylor's applicability to this kind of dispute, an examination of Taylor and its progeny represents a logical starting point.

In Taylor, the Supreme Court interpreted provisions of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a statute designed to ensure that certain "career" criminals receive enhanced sentences. Asked to determine whether burglary was a predicate offense under the

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ACCA, the Taylor Court concluded that Congress had intended to promulgate a generic, contemporary definition of burglary. 495 U.S. at 598. The Court supported its conclusion by pointing out that the ACCA's sentence-enhancement provision embodied a "categorical approach" to the designation of predicate offenses. Id. at 588-89. Using this "categorical approach," the Court held that an offense was equivalent to burglary "if either its statutory definition substantially corresponds to 'generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id. at 602.

We previously have considered the applicability of Taylor's categorical approach to the federal statutes at issue here. In that case, we addressed, inter alia, the defendant's assertion that his prior conviction under a general Massachusetts assault and battery statute failed to comprise a "misdemeanor crime of domestic violence" within the meaning of 18 U.S.C. § 922(g)(9). United States v. Meade, 175 F.3d 215, 218-21 (1st Cir. 1999). Through an exercise in statutory construction, we resolved the defendant's argument that predicate misdemeanors underlying section 922(g)(9) violations needed to include relationship status as an element within their formal definitions. See id. Focusing on the federal statute's plain language, we held that the mode of aggression was a sine qua non of the predicate offense's formal statutory definition, but that relationship status was not. Id. at 219.

Importantly, in Meade we rejected the defendant's contention that Taylor required a federal court to plunge headlong into a categorical analysis whenever it was called upon to construe a statute or sentencing guideline that incorporated the concept of a predicate offense. We explained that:

Before engaging in a categorical approach, one first must have established the formal definition of the particular predicate offense, a process that necessarily requires determining the requisite elements of the statute of conviction. The appellant's attempt to establish the formal definition of a "misdemeanor crime of domestic violence" by direct resort to a categorical approach thus puts the cart before the horse.

Id. at 221; see also United States v. Shepard, 231 F.3d 56, 64 n.8 (1st Cir. 2000)...

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