73 F.3d 1380 (6th Cir. 1996), 93-5608, United States v. Lanier

Docket Nº:93-5608.
Citation:73 F.3d 1380
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David W. LANIER, Defendant-Appellant.
Case Date:January 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1380

73 F.3d 1380 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

David W. LANIER, Defendant-Appellant.

No. 93-5608.

United States Court of Appeals, Sixth Circuit

January 23, 1996

Reargued June 14, 1995.

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Jessica D. Silver, Thomas E. Chandler (argued and briefed), U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, for U.S.

Alfred H. Knight (argued and briefed), Willis & Knight, Nashville, TN, for David W. Lanier.

David W. Lanier (briefed), Dyersburg, TN, pro se.

Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, WELLFORD, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, and MOORE, Circuit Judges.

MERRITT, C.J., delivered the opinion of the Court for nine judges, in which KENNEDY, MARTIN, BOGGS, NORRIS, SUHRHEINRICH, and SILER, JJ., concurred in full and in which RYAN and BATCHELDER, JJ., concurred in Parts I and III. WELLFORD (pp. 1394-1397), and NELSON (pp. 1397-1399), JJ., delivered separate opinions concurring in part and dissenting in part, with Judge WELLFORD also concurring in Judge NELSON's opinion. KEITH (pp. 1399-1400), JONES (pp. 1400-1403), and DAUGHTREY (pp. 1403-1414), JJ., delivered separate dissenting opinions, with Judges KEITH and MOORE concurring in Judge DAUGHTREY's dissenting opinion.

MERRITT, Chief Judge.

I. The Question Presented

This is a direct criminal appeal by a convicted Tennessee state judge. He raises a question of interpretation about 18 U.S.C. Sec. 242, perhaps the most abstractly worded statute among the more than 700 crimes in the federal criminal code. Section 242 was adopted as a codification of prior law in 1874 during the period of Reconstruction in the aftermath of the Civil War. It criminalizes without any further definition the willful "deprivation of any rights ... protected by the Constitution" committed by any person under "color of any law." 1 That is the broad language we must interpret. The specific question before us is whether the sexual harassment and assault of state judicial employees and litigants by the judge violates this federal criminal statute. The statute, as applied in this case, does not specifically

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mention or contemplate sex crimes, and including sexual misconduct within its coverage stretches its meaning beyond its original purpose. Thus, the fundamental question before us is whether the statute--tied by its language simply to "constitutional rights"--should receive a fixed definition of criminal liability or should be interpreted as evolving or expanding over time to include the abridgement of new constitutional rights as they are recognized in our civil constitutional law. The courts have developed theories or ingredients of constitutional violations primarily in the civil context, and there is no developed law of constitutional crimes. Section 242 by its terms criminalizes violations of "constitutional rights" only in the abstract, not conduct which is described specifically by federal or state statute. The problem here is to articulate as nearly as possible a theory of constitutional crimes consistent both with constitutional rights declared in civil cases and also consistent with established canons of statutory construction of federal criminal laws.

In Screws v. United States, the Supreme Court upheld the constitutionality of Sec. 242 by one vote, with the majority unable to agree on a single rationale. 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In a five-four decision, the Court narrowly rejected arguments, accepted by the dissenters, that the statute is too indefinite and vague to meet due process standards. These standards require federal criminal statutes to be written with sufficient definiteness to give notice of the criminal conduct for which a person may be punished in federal court.

In a long line of cases before and after the Screws case, the Supreme Court has sought to apply a fundamental principle limiting the judicial power to extend criminal statutes by interpretation, a long-standing principle articulated in 1820 by Chief Justice John Marshall for a unanimous Court:

The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself ... It is the legislature, not the court, which is to define a crime, and ordain its punishment.... It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.

United States v. Wiltberger, 18 U.S. 76, 93-94, 5 Wheat. 35, 43-44, 5 L.Ed. 37 (1820). This case stands for a number of fundamental propositions that form the basis of our criminal law, in addition to the principle of strict construction. No matter how outrageous a defendant's actions may be, he has to be charged with the appropriate offense created by federal law. Courts may not create or extend criminal law by using a common-law process of interpretation. If Congress has not been clear about the type of conduct that it wishes to criminalize, courts should not hold a defendant criminally liable by creating a new federal crime.

More recently, Justice Thurgood Marshall observed that reasons of federalism, as well as the necessity of public notice and fair warning, underlie this principle of interpretation:

[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.

United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).

In this case, the defendant, a state Chancery Court judge from a rural county in West Tennessee, was indicted in eleven counts, three of which were felony counts. The three felony counts charged him with instances of willfully "coercing" a woman "to engage in sexual acts" with him which caused bodily injury (counts 6, 7 and 10). Eight of the counts were misdemeanor counts charging him with various types of "willful sexual assault" by "touching," "grabbing the breasts and buttocks of" or "exposing his genitals to" a woman. The three felony counts charging coercive sexual acts involved two women, and the other eight misdemeanor counts involved six other women. In each count, the constitutional deprivation is described in abstract terms as "the right not to be deprived of

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liberty without due process of law" under the Fourteenth Amendment. The government alleges that in each instance the defendant acted "under color of law" by using his official position as a Chancellor to engage in the "willful sexual assault."

The District Court overruled the defendant's motion to dismiss the indictment for failure to state a crime under Sec. 242. Seeking to narrow the potential reach of the statute in sex crime cases, it charged the jury that "it is not ... every unjustified touching or grabbing" that constitutes a constitutional violation, only "physical abuse ... of a serious and substantial nature ... which is shocking to one's conscious [sic]" (emphasis added). The jury convicted the defendant of two of the three felony counts and five of the eight misdemeanor counts, for which the District Court sentenced him to a total of twenty-five years imprisonment. He has appealed on numerous grounds, including the failure of the District Court to dismiss the indictment for failure to state a federal crime under Sec. 242.

After consideration of the legislative history of this statute, the case law, the long established tradition of judicial restraint in the extension of criminal statutes, and the lack of any notice to the public that this ambiguous criminal statute includes simple or sexual assault crimes within its coverage, we conclude that the sexual harassment and assault indictment brought under Sec. 242 should have been dismissed by the District Court upon motion of the defendant. Thus the conviction and sentence of the defendant is reversed and the indictment dismissed.

In asserting that sexual assault is a constitutional crime, the prosecution proposes that this substantive due process, sexual assault offense be defined as "interference with bodily integrity that shocks the conscience of the court and the jury." The prosecution relies exclusively on this theory. It has neither articulated nor proposed the recognition of a gender-based crime for sexual assault involving discrimination against or oppression of women in violation of the Equal Protection Clause. Nor did the prosecution allege in the indictment, or attempt to prove as an element of the offense, that the state criminal process in Tennessee was incapable of enforcing its own criminal statutes prohibiting sexual assault, nor did the prosecution allege as an element of the Sec. 242 offense that state law enforcement officials have laws, customs, policies or practices that discriminate against or oppress women as a class. There is no claim that state law enforcement officials and state prosecutors, judges or jurors are any less concerned about such crimes than their federal counterparts. Therefore, our opinion addresses only the substantive due process, "shock-the-conscience" crime alleged by the prosecution, not a crime based on equal protection, state-sanctioned abuse, or some other legal theory.

II. The Legislative History of Sec. 242

Section 242 is an unusual statute, perhaps unique in our legislative history. Scholars and judges frequently question how much emphasis or reliance one should attempt to put on "legislative intent" derived from studying legislative history. Although it is problematic to presume that any deliberative assembly comprised of many...

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