U.S. v. Kavoukian, Docket No. 02-1051.

• Decision Date: 31 December 2002
• Docket Number: Docket No. 02-1051.
• Citation: U.S. v. Kavoukian, 315 F.3d 139 (2nd Cir. 2002)
• Parties: UNITED STATES of America, Appellant, v. Kurt KAVOUKIAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

315 F.3d 139

UNITED STATES of America, Appellant, v. Kurt KAVOUKIAN, Defendant-Appellee.

Docket No. 02-1051.

United States Court of Appeals, Second Circuit.

Argued: December 19, 2002.

Decided: December 31, 2002.

Barbara D. Cottrell, Assistant United States Attorney (Joseph A. Pavone, United States Attorney for the Northern District of New York, Paul D. Silver and Edward P. Grogen, Assistant United States Attorneys, on the brief), Albany, NY, for appellant.

Paul Evangelista (Molly Corbett, on the brief), Assistant Federal Public Defender's Office, Albany, NY, for defendant-appellee.

Before: FEINBERG, MESKILL, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge.

I.

In 1996, Defendant Kurt Kavoukian pleaded guilty in a New York County Court to a state charge of Menacing in the Second Degree.¹ At the plea hearing, Defendant acknowledged that on July 15, 1996, he had a disagreement with a woman, and that during the disagreement he "displayed a rifle" in a "manner intended to place [the woman] in fear." Defendant was sentenced to time served and to three years' probation; in addition, the court imposed a permanent order of protection, barring Defendant from having any contact with the woman or her children. There is no information in the indictment, the plea hearing transcript, or the statement of conviction describing the nature of the relationship between Defendant and his victim.

In 2001, a federal grand jury returned a three-count indictment against Defendant; over the next months, additional counts were added, and in August 2001, a third superseding indictment was filed charging Defendant with ten counts. Counts One through Eight allege various violations of 18 U.S.C. § 922(g)(9),² which makes unlawful the possession of firearms by a person who has previously been convicted of a misdemeanor crime of domestic violence.

Defendant moved to dismiss the indictment as to Counts One through Eight, arguing that his state conviction for Menacing in the Second Degree did not qualify as a predicate offense, as defined in 18 U.S.C. § 921(a)(33)(A), to support the indictment as to those counts. 18 U.S.C. § 921(a)(33)(A) defines "misdemeanor crime of domestic violence" as an offense that

(i) is a misdemeanor under Federal or 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, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

In support of his motion, Defendant argued, inter alia, that, because the state offense to which Defendant pleaded guilty prohibits only the "intentionally plac[ing] or attempt[ing] to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon," N.Y. Penal Law § 120.14 (emphasis added), it does not have as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon" required by 18 U.S.C. § 921(a)(33)(A) (emphasis added). In addition, Defendant claimed that his state conviction does not establish the necessary predicate "misdemeanor crime of domestic violence" because neither the state statute nor the state court record established a domestic relationship between Defendant and the victim.

Arguing against the motion to dismiss, the government asserted that "[t]he nature of the relationship between the assailant and the victim" of the state offense "need not be an element of the underlying offense. Rather, it is a question for the finder of fact at trial." The government did not address the Defendant's other argument.

The district court (Kahn, J.) dismissed counts One through Eight of the indictment. The court reasoned that the state menacing conviction "does not meet the requirements of § 921(a)(33)(A) because there is no element of § 120.14-01 requiring the offense be `committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.'" Moreover, the court said that in order to sustain the indictment, it would be required to reexamine Defendant's state court conviction to determine whether the victim was in a domestic relationship with the Defendant. The court declined to do this, and decided instead to look only at the statement of conviction and the sentencing documents in the record. The court found this evidence insufficient to support the government's argument that Defendant had committed the required predicate "misdemeanor crime of domestic violence."

The district court denied the government's motion for reconsideration, and the government appeals. On appeal, neither side discusses at any length Defendant's first argument, not passed on by the court below, concerning the display, rather than the use, of a weapon. Each concentrates only on the alleged need for the underlying violation to have a domestic relationship as an element.

II.

There is no dispute that, in order to convict the defendant of a violation of 18 U.S.C. § 922(g)(9), the prosecution will have to prove that the victim of Defendant's prior misdemeanor was in a domestic relationship with him. The question is whether 18 U.S.C. § 922(g)(9) requires that such a domestic relationship between the assailant and the victim be included as an element of the predicate state offense. Although we previously have not had occasion to address this question, several other circuits have considered it, and all have agreed with the government's position. See United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002); United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.2000); United States v. Meade, 175 F.3d 215, 218 (1st Cir.1999); United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999); see also United States v. Ball, 7 Fed. Appx. 210, 213, 2001 WL 324624 (4th Cir.) (unpublished per curiam order), cert. denied, 534 U.S. 900, 122 S.Ct. 226, 151 L.Ed.2d 162 (2001). These circuits have used a variety of rationales to reach this conclusion.

Both the Eighth Circuit and the First Circuit relied in part on the fact that the statute uses the singular "has, as an element" to introduce the requirement of the predicate offense. Smith, 171 F.3d at 620; Meade, 175 F.3d at 218-19. This, they conclude, is evidence that Congress meant to require that only a single element — the use or attempted use of physical force — be part of the predicate offense. As the Eighth Circuit noted,

[i]n the statute at issue, the singular term "element" modifies the phrase "the use or attempted use of physical force...." If Congress meant the predicate misdemeanor to have two elements, it would have used the plural form of "element."

Smith, 171 F.3d at 620.

The D.C. Circuit relied on a different textual argument, examining the relationship among the phrases "an offense," "use of physical force," and "committed by." It concluded that "committed by" necessarily referred back to "an offense" rather than to "use of physical force":

The verb "commit" means "to do (something wrong or reprehensible), to perpetrate, be guilty of (a crime or offence, etc.)." Oxford English Dictionary 559 (2d ed.1989) (emphasis added). The use of force is not "committed," "done" or "perpetrated." An "offense" is "committed" or "perpetrated." And here, the offense of a "misdemeanor crime of domestic violence" must be committed by a person in one of the specific relationships.... In short, a "misdemeanor crime of domestic violence" means an offense that is a misdemeanor, has, as an element, the use of force and was committed by a person with the requisite relationship.

Barnes, 295 F.3d at 1360 (footnotes omitted).

The D.C. Circuit and the First Circuit also gave an additional reason for their holdings. They took the pragmatic view that a contrary interpretation of the statute "would create a `significant practical anomaly,' rendering the law a nullity in a majority of the states as well as at the Federal level." Id. at 1364 (citing Meade, 175 F.3d at 220):

Fewer than half of the states currently have a "domestic assault" statute that expressly includes as elements both the use of force and a specific relationship between the offender and victim. Most states, and the District of Columbia, charge domestic violence offenders under general assault statutes.... Moreover, [the defendant's] interpretation would make section 921(a)(33)(A)(i)'s reference to a misdemeanor under "Federal law" a nullity because there is no federal misdemeanor that includes both the use of force and the domestic relationship as express elements.

Id. at 1364-65 (footnote omitted).

Finally, several circuits concluded that the statute's legislative history clears up any possible ambiguity as to its meaning. In perhaps the most convincing resort to legislative history, the D.C. Circuit in Barnes quoted from the amendment's sponsor, who addressed this question directly:

[T]he final agreement does not merely make it against the law for someone convicted of a misdemeanor crime of domestic violence from possessing firearms. It also incorporates this new category of offenders into the Brady law, which provides for a waiting period for handgun purchases. Under the Brady law, local law enforcement authorities are required to make reasonable efforts to ensure that those who are seeking to purchase a handgun are not prohibited under Federal law from doing so. Mr. President, convictions for domestic violence-related crimes often are for crimes, such as assault, that are not explicitly identified as related to domestic violence. Therefore, ...