Janis v. United States

• Docket Number: 22-2471
• Decision Date: 06 July 2023
• Parties: Tiffany Janis Petitioner - Appellant v. United States of America Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

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Tiffany Janis Petitioner - Appellant v. United States of America Respondent - Appellee

No. 22-2471

United States Court of Appeals, Eighth Circuit

July 6, 2023

Submitted: May 10, 2023

Appeal from United States District Court for the District of South Dakota - Western

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.

BENTON, CIRCUIT JUDGE.

Tiffany Charlene Janis appeals her conviction for discharging a firearm during a crime of violence. See 18 USC § 924(c)(1)(A)(iii). Having jurisdiction under 28 U.S.C § 1291 and § 2253, this court affirms.

Janis shot and killed her husband when she found him cheating. She pled guilty to second-degree murder in Indian country. See 18 U.S.C. §§ 1111(a), 1153. She also pled guilty to discharging a firearm during the commission of a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii).

A year later, Janis moved to vacate her § 924(c) conviction believing that intervening Supreme Court cases rendered it unlawful. See 28 U.S.C. § 2255. Specifically she argued that federal second-degree murder could not be considered a "crime of violence" under § 924(c)(3)(A). The district court^[1] dismissed her motion. She appeals.

II.

This court reviews de novo whether second-degree murder qualifies as a "crime of violence." McCoy v. United States, 960 F.3d 487, 489 (8th Cir. 2020).

A.

Janis pled guilty to discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Like other laws,^[2] § 924(c) defines "crime of violence" using a "force clause" (also called an "elements clause") and a "residual clause":

[T]he term "crime of violence" means an offense that is a felony and- [Force Clause] (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

[Residual Clause] (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3) (alterations added).

When Janis pled guilty under § 924(c), federal second-degree murder might have qualified as a "crime of violence" under either the force or the residual clause. The Supreme Court changed the landscape by invalidating the residual clause as unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336 (2019). See also Jones v. United States, 39 F.4th 523, 526 (8th Cir. 2022) ("Davis applies retroactively to cases on collateral review."). Today, Janis's murder conviction must satisfy the force clause to qualify as a crime of violence. See McCoy, 960 F.39 at 489.

To decide whether second-degree murder qualifies as a crime of violence under the force clause, this court applies the categorical approach described in United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). Accord McCoy, 960 F.39 at 489. This approach compares the elements of second-degree murder with the force clause's requirements. Taylor, 142 S.Ct. at 2020. "The only relevant question is whether the federal felony at issue always requires the government to prove- beyond a reasonable doubt, as an element of its case-the use, attempted use, or threatened use of force" against the person or property of another. Id. See 18 U.S.C. § 924(c)(3)(A) (force must be used, attempted, or threatened "against the person or property of another").

Federal murder requires proof beyond a reasonable doubt that the defendant committed an "unlawful killing of a human being with malice aforethought." 18U.S.C. § 1111(a).

The statute lists the killings that qualify as first-degree murder.^[3]"Any other murder is murder in the second degree." Id. Second-degree murder thus two elements: (1) unlawful killing of a human being; with (2) malice aforethought. See United States v. Iron Crow, 970 F.3d 1003, 1009 (8th Cir. 2020). The categorical approach asks whether those elements always satisfy § 924(c).

Recently, analyzing near-identical statutory language in the Armed Career Criminal Act, the Supreme Court showed how to interpret 924(c)'s force clause. See Borden v. United States, 141 S.Ct. 1817, 1825-28 (2021) (plurality opinion); see also id. at 1834 (Thomas, J., concurring in the judgment). The plurality analyzed the clause's text, which defines violent felonies as those involving the "use of physical force against the person of another." 18 U.S.C. § 924(e). It held that the direct object-"use of force against the person of another"-introduces a "conscious object" that force is "consciously directed" against. Borden, 141 S.Ct. at 1825, 26 (emphasis added), distinguishing Voisine v. United States, 579 U.S. 686, 691-93 (2016) (holding that the phrase "use of force," standing alone, encompasses crimes committed with ordinary recklessness). A concurrence in the judgment concluded that the word "use" applies "only to intentional acts designed to cause harm." Borden, 141 S.Ct. at 1835 (Thomas, J., concurring in the judgment).

The Court concluded that the force clause excluded crimes capable of being committed with a mens rea of ordinary recklessness. Someone recklessly committing a crime, the plurality said, merely "pay[s] insufficient attention to the potential application of force." Id. at 1827. "[B]ecause his conduct is not opposed to or directed at another . . . [he] has not used force 'against' another person in the targeted way that [the force] clause requires." Id.

Borden does not resolve Janis's case-second-degree murder cannot be committed with ordinary recklessness. See United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989). See also United States v. Larry, 51 F.4th 290, 292 (8th Cir. 2022) ("Borden holds only that the force clause categorically excludes offenses that can be committed recklessly."). Second-degree murder requires malice aforethought, a heightened mens rea. See Johnson, 879 F.2d at 334; Stevenson v. United States, 162 U.S. 313, 320 (1896) ("Malice in connection with the crime of killing is but another name for a certain condition of a man's heart or mind."). Nonetheless, Borden's analysis of the statutory phrase "against the person of another" is instructive. See United States v. Frazier, 48 F.4th 884, 886 (8th Cir. 2022) (applying Borden's analytical approach).

B.

Janis argues that killing a person "with malice aforethought" can be done without "us[ing] force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). This court's second-degree murder cases, she says, show that "malice aforethought" can be established without a perpetrator "targeting" force in the way that the force clause, as interpreted by the Borden plurality, requires.

Under the approach of the Borden plurality, § 924(c)'s force clause requires directing or targeting force at another person or their property. See Borden, 141 S.Ct. at 1825 ("The phrase 'against another,' when modifying the 'use of force,' demands that the perpetrator direct his action at, or target, another individual."). Federal second-degree murder will always clear this bar. Because it requires malice aforethought, the crime always involves "directed" force and thus constitutes a "crime of violence" under §924(c)'s force clause.

The categorical approach compels this conclusion for malice aforethought. Malice aforethought captures the "universal and persistent" concept "that a defendant must be 'blameworthy in mind' before he can be found guilty." Elonis v. United States, 575 U.S. 723, 734 (2015), quoting Morissette v. United States, 342 U.S. 246, 250, 52 (1952). But the concept is-and has long been- "elusive." Morissette, 342 U.S. at 252. See also F. Wharton, A Treatise on the Law of Homicide in the United States ch. 1 § 3 (1875) (Malice aforethought is "distinctive[,] inconclusive," and requires "peculiar exposition and limitation"), cited by Allen v. United States, 164 U.S. 492, 495 (1896), and Schad v. Arizona, 501 U.S. 624, 648 (1991) (Scalia, concurring in part and concurring in the judgment).

Malice aforethought's definition may be elusive, but its function is not: "malice aforethought"-a murder-specific term appearing only once in the entire United States Code (18 U.S.C. § 1111, "Murder")-distinguishes between more and less culpable killings. Historically, it "focus[ed] on mental state in order to distinguish those who deserved death from those who . . . would be spared." Tison v. Arizona, 481 U.S. 137, 156 (1987). As governments began deciding that not all murders warranted execution, they retained "malice aforethought" to distinguish murder from manslaughter. Mullaney v. Wilbur, 421 U.S. 684, 693 (1975). This distinction has deep roots. See 4 W. Blackstone, Commentaries on the Laws of England, 191, 198-201 (1769); Stevenson, 162 U.S. at 320 ("The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter."). The federal murder statute continues the tradition of using "malice aforethought" to distinguish murder from manslaughter; the more-culpable homicide from the less-culpable one. Compare 18 U.S.C. § 1111(b) (authorizing a life sentence for murder) with 18 U.S.C. § 1112 (setting a 15-year maximum for manslaughter, defined as an unlawful killing "without malice").

The word "malice" itself presupposes an external object at which it is directed. Cf. Esquivel-Quintana v Sessions, 581 U.S. 385, 391 (2017) (using the "normal tools of statutory interpretation," which "begins with the language of the statute," when a criminal law "does not expressly define" a key element of the crime). Webster's unabridged dictionary defines "malice" as the "intention or desire to harm another, [usually] seriously through doing something unlawful." Webster's Third New International Dictionary, Unabridged 1367 (1961) (emphasis added...