U.S. v. Griffith

• Decision Date: 17 July 2006
• Docket Number: No. 05-12448.,05-12448.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee GRIFFITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

455 F.3d 1339

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee GRIFFITH, Defendant-Appellant.

No. 05-12448.

United States Court of Appeals, Eleventh Circuit.

July 17, 2006.

Regina Cannon Stephenson, V. Natasha Perdew Silas, Stephanie Kearns, Fed. Pub. Defenders, Fed. Def. Program, Inc., Atlanta, GA, for Griffith.

Francey Hakes, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and CARNES, Circuit Judges, and TRAGER,^* District Judge.

CARNES, Circuit Judge:

Jerry Lee Griffith was convicted for possession of a firearm in violation of 18 U.S.C. § 922(g)(9), the provision of the Armed Career Criminal Act (ACCA) that makes it a crime for anyone who has been convicted of a "misdemeanor crime of domestic violence" to possess a firearm. Griffith contends that his Georgia simple battery conviction does not qualify as a predicate offense for § 922(g)(9) purposes because its contact element does not require physical force. That was the sole basis of his motion to dismiss the indictment and is the principal basis of his appeal from the district court's order denying that motion. The underlying issue of statutory interpretation about what qualifies as "physical force" for § 922(g)(9) purposes has been decided by three other circuits, which have split two-to-one against Griffith's position. Our decision will make it three-to-one.

I.

In August 2000 Jerry Griffith pleaded guilty to two counts of simple battery, a misdemeanor under Ga. Code Ann. § 16-5-23(a). We know from state court records that his conviction on the first count was for making "contact of an insulting and provoking nature to Delores Griffith, his wife, by hitting her," and that his conviction on the second count was for "intentionally mak[ing] contact of an insulting and provoking nature to Delores Griffith, his wife, by dragging her across the floor."

Griffith admits that one night in October 2002, which was about two years after his state court conviction, he was found in possession of a firearm. That led to his conditional guilty plea to one count of violating § 922(g)(9), the condition of the plea being that Griffith could appeal the district court's denial of his motion to dismiss the indictment. The sole ground of that motion to dismiss was Griffith's contention that his prior Georgia misdemeanor conviction was not a valid predicate offense to sustain his current conviction under 18 U.S.C. § 922(g)(9).

II.

Section 922(g)(9) makes it "unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence" to possess "any firearm or ammunition" that has been in or affects interstate commerce. 18 U.S.C. § 922(g)(9). The term "misdemeanor crime of domestic violence" is defined to include an offense that "(i) is a misdemeanor under . . . State . . . law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse. . . ." 18 U.S.C. § 921(a)(33)(A). Griffith's primary contention is that the Georgia statute under which he was convicted in 2000 does not satisfy the second part of that definition— that it does not have "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon."

The question is not whether the actual conduct that led to Griffith's prior conviction involved physical force or worse. If that were the question, this would be a simpler case because we know from the state court records that Griffith was convicted of making "contact of an insulting and provoking nature to Delores Griffith, his wife, by hitting her . . ." and making "contact of an insulting and provoking nature to Delores Griffith, his wife, by dragging her across the floor." Wife beating and dragging is conduct that involves physical force under any definition of that term. The § 921(a)(33)(A)(ii) definition, however, does not turn on the actual conduct underlying the conviction but on the elements of the state crime ("has, as an element . . ."). See 18 U.S.C. § 921(a)(33)(A)(ii); United States v. Shelton, 325 F.3d 553, 558 n. 5 (5th Cir. 2003) (declining to consider in applying § 922(g)(9) the defendant's admission that he used physical force during the assault, because the court "look[s] to the elements set forth in the statute—not the actual conduct to determine whether the offense qualifies as a crime of domestic violence"); United States v. Smith, 171 F.3d 617, 620-21 (8th Cir. 1999) (holding that in applying § 922(g)(9) "we must look only to the predicate offense rather than to the defendant's underlying acts" and "[w]e may expand our inquiry under this categorical approach to review the charging papers and jury instructions, if applicable, only to determine under which portion of the assault statute Smith was convicted"); see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990) (in applying the 18 U.S.C. § 924(e) term "violent felony" courts may look only to the statutory definitions of the prior offense).

The Georgia simple battery statute provides: "A person commits the offense of simple battery when he or she . . .: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another. . . ." Ga.Code Ann. § 16-5-23(a)(1). Applying the categorical or element-by-element approach, the question is whether the crime defined by that statute requires "as an element, the use or attempted use of physical force." If "physical contact of an insulting or provoking nature," as described in the Georgia statute, necessarily involves "physical force," a conviction in the courts of that state for simple battery is enough to satisfy the requirements of § 922(g)(9); if not, then not.

On the government's side of the issue are the decisions of the First Circuit in United States v. Nason, 269 F.3d 10, 20-21 (1st Cir. 2001) (concluding that a state statute criminalizing "offensive physical contact" requires the use of "physical force" so that a violation of it qualifies as a crime of domestic violence for § 922(g)(9) purposes), and the Eighth Circuit in United States v. Smith, 171 F.3d 617, 621 n. 2 (8th Cir. 1999) (concluding that a state statute that contains "insulting or offensive physical contact" as an element requires the use of physical force so that a violation of it qualifies as a crime of domestic violence under § 922(g)(9)). On Griffith's side of the issue is the Ninth Circuit's decision in United States v. Belless, 338 F.3d 1063, 1067-68 (9th Cir. 2003) (concluding that a statute criminalizing rude, angry or insolent "unlawful touching" does not require "physical force" sufficient to satisfy § 922(g)(9)). See also Flores v. Ashcroft, 350 F.3d 666, 669-70 (7th Cir. 2003) (interpreting a similar provision of the Immigration and Naturalization Act that requires an underlying offense to have as an element the use of physical force, and concluding that intentional touching that results in bodily injury does not necessarily involve physical force).

"In interpreting a statute we look first to the plain meaning of its words." United States v. Maung, 267 F.3d 1113, 1121 (11th Cir. 2001). In this case the key words in the § 921(a)(33)(A)(ii) definition are "physical force." The plain meaning of "physical force" is "[p]ower, violence, or pressure directed against a person" "consisting in a physical act." See Black's Law Dictionary 673 (8th ed. 1999); Nason, 269 F.3d at 16. As we have noted, the Georgia statute has as an element "physical contact of an insulting or provoking nature." Ga. Code Ann. § 16-5-23(a)(1). A person cannot make physical contact—particularly of an insulting or provoking nature—with another without exerting some level of physical force. See Smith, 171 F.3d at 621 n. 2 ("physical contact, by necessity, requires physical force to complete"); see also Nason, 269 F.3d at 16 (holding that a statute criminalizing "offensive physical contact" satisfies § 922(g)(9)'s physical force requirement and noting that because the straightforward definition of physical force produces "an entirely plausible result," the plain language controls). Therefore, under the plain meaning rule, the "physical contact of an insulting or provoking nature" made illegal by the Georgia battery statute satisfies the "physical force" requirement of § 921(a)(33)(A)(ii), which is defined into § 921(g)(9).

The result we reach by applying the plain meaning rule is bolstered by a look at a close neighbor of the statutory provision we are interpreting. Section 922(g)(8)(C)(ii), which immediately precedes § 922(g)(9), is part of a provision restricting firearm possession by anyone subject to a court order that prohibits the "use, attempted use, or threatened use of physical force . . . that would reasonably be expected to cause bodily injury." 18 U.S.C. § 922(g)(8)(C)(ii). The significance of the limiting language narrowing the scope of that provision to force "that would reasonably be expected to cause bodily injury" is that Congress put the limitation into the last subsection that precedes § 922(g)(9), but not into § 922(g)(9) itself or into the definition of "crime of domestic violence" that is contained in § 921(a)(33)(A)(ii).

"It is well settled that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Duncan v. Walker, 533 U.S. 167, 173, 121 S. Ct. 2120, 2125, 150 L.Ed.2d 251 (2001) (internal citation, quotation marks, and alteration omitted). If Congress had wanted to limit the physical force requirement in § 922(g)(9), it could have done so, as it did in the last clause of the preceding paragraph of the same subsection, see § 922(g)(8)(C)(ii), and with the same...