Lovely v. Cunningham
| Citation | 796 F.2d 1 |
| Decision Date | 24 June 1986 |
| Docket Number | No. 85-1379,85-1379 |
| Parties | Francis A. LOVELY, Petitioner, Appellant, v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison, Respondent, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Eleanor Krasnow, Manchester, N.H., by Appointment of the Court, for petitioner, appellant.
Amy L. Ignatius, Asst. Atty. Gen., Civil Bureau, with whom Stephen E. Merrill, Atty. Gen., Concord, N.H., was on brief, for respondent, appellee.
Before COFFIN and BREYER, Circuit Judges, and MALETZ, * Senior Judge.
This appeal from the district court's denial of a writ of habeas corpus challenges the retroactive application to petitioner of the New Hampshire Supreme Court's construction of the state's Aggravated Felonious Sexual Assault statute, RSA 632-A:2 (Supp.1983). In particular, the challenge addresses the court's interpretation of "extortion" one of the listed means of coercing sexual penetration, as embracing "threats of economic reprisal". State v. Lovely, 124 N.H. 690, 695, 480 A.2d 847, 850 (1984). We affirm the judgment below.
The indictments, containing twelve counts, charged the felony of Aggravated Felonious Sexual Assault (involving sexual penetration), and eight complaints charged the misdemeanor of Sexual Assault (not involving sexual penetration). They all contained the basic allegations that defendant "did, knowingly by coercion engage in [a sexual act with victim and] coerced [victim] ... by threatening him with [one or more of the following:] loss of his employment, housing and possible criminal charges involving monies owed by the victim to the defendants should he not submit." The factual background was, in brief, that petitioner, a state liquor store manager, befriended victim, a drifter, and over a period of four months spent in excess of one thousand dollars on him, hired him as an employee at the liquor store, paid $60 to the Hanover police by way of restitution for a theft committed by victim, paid his room rent, and even urged victim to live in petitioner's home.
As time went on, according to victim's testimony, petitioner coerced victim on many occasions into performing sexual acts by making threats. The most numerous threats were of the loss of victim's job, which required little work for the money. 1 A few threats were that victim would no longer be allowed to stay in petitioner's home or in victim's rented room. 2 Still other threats were of a generalized nature, referring to the police. 3 At several points victim gave some more details to his perception of the threats relating to the police. On one exchange, victim stated that his fear was that petitioner would sue him for the money paid the Hanover police by way of restitution. Since victim had no money, he speculated that "if you get sued maybe you could end up in jail." [Tr. 384]. At another point, victim referred to a threat by petitioner "to take me to court, criminal court, or whatever, about the money that he had spent on me." [Tr. 536]. On another occasion victim said that he submitted to sexual advances against his will because "I didn't know exactly what suing meant, so I was scared...." [Tr. 392]. Another source of victim's apprehension was that he interpreted petitioner's "keeping me out of trouble" talk to refer to two other crimes concerning which the Hanover police were looking for him. [Tr. 507].
The court, in instructing the jury, read the twelve felony counts and the eight misdemeanor counts, and quoted the relevant statutory definitions of the crimes and of the element of coercion by "threatening to retaliate", mentioning "extortion" as included in the latter. The court also charged that the state had to prove absence of consent beyond a reasonable doubt, adding, "in considering the issue of consent you may consider what steps [victim] took to resist performing the alleged acts." There were no objections to any of these instructions. The jury returned verdicts of guilty on all twelve felony counts and on seven of the eight misdemeanor counts.
On appeal petitioner's argument was that threats of financial retribution, as distinguished from threats of violence, were not criminalized by the Aggravated Felonious Sexual Assault statute. The New Hampshire Supreme Court disagreed, stating, Lovely, 124 N.H. at 695, 480 A.2d at 850.
One month after the New Hampshire decision, petitioner filed a "Motion to Supplement Motion to Reconsider", arguing that the state court's construction of the Aggravated Felonious Sexual Assault Statute was unforeseeable and therefore constituted a violation of the ex post facto principle and rendered the statute unconstitutionally vague. This motion being denied, petitioner filed a petition for a writ of habeas corpus in the district court for the District of New Hampshire. It was subsequently dismissed and this appeal followed.
Before addressing petitioner's arguments, we set forth New Hampshire's statutory scheme. The Aggravated Felonious Sexual Assault statute, RSA 632-A:2, provides in pertinent part:
RSA 632-A:1 defines "Retaliation" as follows:
The statute referring to "extortion" is the following:
"RSA 637:5 Theft by Extortion
I. A person is guilty of theft as he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof.
II. As used in this section, extortion occurs when a person threatens to: ....
(g) Take action as an official against anyone ... or cause such action....
....
(i) Do any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships."
This assortment of statutes poses a threshold problem of parsing. Indeed, petitioner would call this another basis for reversal. When one tries to diagram the relevant provisions, the structure looks like this:
A literal substitution of definitions for key words, therefore, would result in the following definition of aggravated sexual assault: "Sexual penetration when the actor coerces the victim by threatening to threaten to threaten to do any other act...."
Such a reading, of course, might rival Gertrude Stein's "A rose is a rose is a rose" but would treat the legislature's efforts as a nullity. For example, the second clause in 632-A:2 IV, "and the victim believes that the actor has the ability to execute these threats in the future" would have no meaning; the promise of a future threat to make yet another future threat would seem to require no abilities other than survival and voice retention. Moreover, the statutory definition of retaliation in 632-A:1 II as "threats of" various acts seems sorely off base; it leaves no room for a definition of the threatened act itself, and is at odds with the dictionary definition of "paying back" or "punishment in kind", American Heritage Dictionary 1109 (1973), "reprisal", Webster's New World Dictionary 1242 (1957), or "[t]he action of retaliating; the return of like for like; repayment in kind; requital, reprisal." Compact Edition of the Oxford English Dictionary 2520 (1981). It seems highly likely that the definition of "retaliation" was intended to read "physical or mental punishment ... extortion", etc., resulting from a prior threat.
This, however, leaves something to be desired. There are still two "threatens" in sequence: to threaten extortion is (by substituting the definition of extortion in the theft by extortion statute, 637:5 II) to threaten to threaten to "do any other act...." This, of course, makes no sense; a threat to make a future threat would hardly be a source of coercion except against the most acquiescent. This problem, it should be noted, does not arise with the other forms of "retaliation"; one can threaten imminent physical or mental punishment, kidnapping, false imprisonment, and public humiliation or disgrace in return for sexual favors, with an understandably coercive effect. Extortion fits into this role only if it also means an act flowing from one, and only one, present threat.
What the New Hampshire Supreme Court did, without explicit analysis, was to elide the surplus "threaten's" in the various definitions so that coercion could be accomplished by a threat to do an act if submission was not forthcoming. It also equated with "violent or personally endangering threats" "[t]hreats of mental punishment" and extortion, which it characterized as including "threats of economic reprisal". Lovely, 124 N.H. at 690, 480 A.2d at 850.
One might have wished for a more precise and explicit rationale. One might even disagree with the result. But we simply cannot say that the construction by the supreme court of a state statute in some need of syntactical surgery, resulting in the elision of some words to achieve a sensible interpretation...
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