U.S. v. Page

• Decision Date: 23 February 1999
• Docket Number: No. 96-4083,96-4083
• Citation: 167 F.3d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derek Duane PAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 325

167 F.3d 325

UNITED STATES of America, Plaintiff-Appellee, v. Derek Duane PAGE, Defendant-Appellant.

No. 96-4083.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 23, 1998.

Decided Feb. 23, 1999.

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

ORDER

PER CURIAM.

The en banc court is equally divided in this case. Eight members of the court ¹ favor affirmance of the district court and join in Judge Moore's concurring opinion (pp. 326-336). Seven members of the court ² agree with Judge Kennedy's dissent (pp. 336-338) and would reverse; Judge Ryan, writing separately (p. 338), would also reverse; Judge Wellford would reverse for the reasons stated in his separate opinion (pp. 338-340) as well as those stated in the opinions of Judges Kennedy and Ryan. Hence, as is customary under such circumstances, the appellant's conviction and sentence are affirmed by an equally divided vote.

MOORE, Circuit Judge, concurring in the order.

As a response to the "escalating problem of violence against women" and in recognition of the severe toll such crimes have on our society in terms of "health care, criminal justice, and other social costs," Congress enacted in 1994 the Violence Against Women Act ("VAWA" or the "Act"). S.REP. NO. 103-138, at 37, 41 (1993) (proposed VAWA of 1993); see Pub.L. No. 103-322, 108 Stat. 1796, 1902-55 (1994). Among numerous other provisions, the Act criminalized interstate domestic violence and interstate violation of protection orders. See VAWA § 40221(a), 108 Stat. at 1926-31, 18 U.S.C. §§ 2261, 2262. While Congress was particularly concerned with those crimes that "disproportionately burden women," S.REP. NO. 103-138, at 37, the criminal provisions are gender-neutral, and enforcement has been gender-neutral as well. See, e.g., United States v. Gluzman, 953 F.Supp. 84 (S.D.N.Y.1997) (upholding the indictment of a wife for the murder of her estranged husband in violation of 18 U.S.C. § 2261), aff'd, 154 F.3d 49 (2d Cir.1998).

Derek Page, the defendant in this case, was convicted under 18 U.S.C. § 2261(a)(2), which makes it illegal for any person to "cause[ ] a spouse or intimate partner to cross a State line ... by force, coercion, duress, or fraud and, in the course or as a result of that conduct, intentionally commit[ ] a crime of violence and thereby cause[ ] bodily injury to the person's spouse or intimate partner." ¹ On appeal, he raises the questions whether physical violence that occurs before interstate travel begins can satisfy the "in the course ... of that conduct" requirement of § 2261(a)(2) and whether a threat of violence that results in the aggravation of pre-existing injuries can be a "crime of violence" causing "bodily injury" for purposes of the statute. I would answer both questions in the affirmative and conclude that there was sufficient evidence for the jury to convict Page under either theory. Finally, I would reject Page's argument that § 2261(a)(2) is unconstitutional and hold that the statute is a constitutional exercise of Congress's power to regulate interstate commerce.

I. BACKGROUND

The facts of this case are not unlike the stories of many women who attempt to leave abusive relationships. Carla Scrivens's relationship with Page started out on fairly blissful terms. Joint Appendix (J.A.) at 302-03 (Scrivens Test. at 395-96). Yet, Page soon became controlling, possessive, and even physically abusive, demanding that Scrivens stop associating with her friends and family, controlling what she could wear and eat, and on one occasion even punishing her disobedience with a stun gun and mace. J.A. at 303-07 (Scrivens Test. at 396-400). In light of the deterioration of their relationship, after less than three months together, Scrivens told Page that she was moving out and ending their relationship. J.A. at 293-95, 310-311 (Scrivens Test. at 376-78, 408-09).

The planned attack against Scrivens took place when she attempted to retrieve her belongings, all of which were still in Page's condominium in Columbus, Ohio. J.A. at 310-19, 338 (Scrivens Test. at 408-21, 440). Upon Scrivens's arrival, Page pushed her down, dragged her away from the door when she attempted to leave, and tried to spray her with mace. J.A. at 316-17, 322 (Scrivens Test. at 418-19, 424). He then beat her with his fists, a claw hammer, and a pipe wrench over the course of several hours. J.A. at 317-23 (Scrivens Test. at 419-25). Scrivens also testified that Page used a stun gun during the assault. J.A. at 318-21 (Scrivens Test. at 420-23). After the beating, Page carried his victim, who could not walk on her battered feet and legs and who had fallen into unconsciousness several times during the attack, and placed her into his car under threat of further violence from his stun gun. J.A. at 326 (Scrivens Test. at 428). Page then drove around for approximately four hours, crossing state lines through West Virginia into Pennsylvania and intentionally passing several local hospitals on the way even though Scrivens pleaded with him to stop for medical treatment at either Riverside or Ohio State University, two hospitals in the Columbus area. J.A. at 223-24, 324-26, 332 (Scrivens Test. at 167-68, 426-28, 434). During this time, Scrivens continued to bleed, and painful swelling from her injuries increased. J.A. at 215, 335, 338 (Friend Test. at 159, Scrivens Test. at 437, 440). Page eventually left her at a hospital in Washington, Pennsylvania, where, after she realized that Page would not return, Scrivens told emergency room personnel that Page had attacked her and agreed to report the incident to the police. J.A. at 225-27, 340 (Friend Test. at 169-71, Scrivens Test. at 442).

Page was charged with kidnaping and interstate domestic violence. After his first trial resulted in a hung jury, a second jury acquitted him of kidnaping under 18 U.S.C. § 1201 and convicted him of interstate domestic violence under 18 U.S.C. § 2261(a)(2). The district court rejected Page's argument, in his post-verdict motion for a judgment of acquittal, that there was insufficient evidence to support the verdict because the statute does not (and, constitutionally, may not) reach violence that occurs before travel begins. A divided panel of this court reversed, holding that Page could be convicted under § 2261(a)(2) only for violence committed during the time in which he and Scrivens were actually traveling in the car. See United States v. Page, 136 F.3d 481, vacated, 143 F.3d 1049 (6th Cir.1998). Concluding that the jury improperly had been permitted to consider the attack inside the condominium as the "crime of violence" underlying the interstate domestic violence charge, the panel remanded for a new trial. See id., 136 F.3d at 488. We granted rehearing en banc and now affirm by an equally divided vote.

II. STATUTORY SCOPE

Page's conduct, as presented to the jury, falls within the scope of § 2261(a)(2) under at least two theories of liability. The evidence showed that he committed interstate domestic violence both: (1) when, by beating his ex-girlfriend into a state of semi-consciousness over the course of several hours, he was enabled to and did force her across state lines against her will in an attempt to evade the law, and (2) when he forced her to travel interstate under threat of violence, intentionally preventing her from obtaining medical treatment, thereby causing aggravation of her pre-existing injuries.

A. "In the Course of": Infliction of Bodily Injury Integrally Related to the Forcible Transportation of a Victim Across State Lines

In order to escape liability under § 2261(a)(2), Page argues that "in the course ... of that conduct" as used in the statute refers to the narrow act of "cross[ing] a State line" rather than to all conduct involved in "caus[ing] a spouse or intimate partner to cross a State line ... by force, coercion, duress, or fraud." As he interprets the statute, it does not reach the violence he committed inside the condominium, even though that conduct was an integral part of his causing his victim to cross state lines by force. This construction not only distorts the plain language of the statute but also makes little sense given the reality of the crime and the very reasons why Congress believed federal involvement was necessary in this area that has traditionally been left to the states.

The crime of violence that took place inside Page's condominium the beating and the use of a stun gun and mace is precisely what enabled Page to force Scrivens to travel across state lines. The beating subdued his victim, rendered her in no condition to resist him physically as she was being placed into his car, and frightened her so severely that she agreed not to make any "commotion" that might attract attention and aid from others once they left his condominium. J.A. at 326 (Scrivens Test. at 428). The attack also allowed Page to retain control over Scrivens during the forcible transportation. Not surprisingly, a person who has just been beaten in the manner Scrivens had been is far less capable physically and emotionally of attempting an escape, formulating a method of escape, or eliciting aid from others. The beating was an integral part of the forcible transportation since it enabled Page to force Scrivens on an unwilling four-hour journey the destination of which was not revealed to Scrivens until much later. J.A. at 332, 337 (Scrivens Test. at 434, 439). Consequently, the beating that took place inside Page's condominium clearly occurred "in the course" of Page forcibly "causing" Scrivens "to cross a State line."

Furthermore, evidence presented to the jury showed that Page removed Scrivens from the local area precisely because he feared the consequences of his having harmed her and knew that interstate travel would make it more difficult for police...