United States v. Howald
| Decision Date | 25 January 2023 |
| Docket Number | CR-21-04-H-BMM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOHN RUSSELL HOWALD, Defendant. |
| Court | U.S. District Court — District of Montana |
The Superseding Indictment charges Defendant John Russell Howald (“Howald”) with the following two crimes: (1) Hate Crime Acts, in violation of 18 U.S.C. § 249(a)(2) the Hate Crimes Prevention Act (“HCPA” or “§ 249(a)(2)”); and (2) Discharge of a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A). (Doc. 1; Doc 72.) Both charges arise from a sexual-orientation-based hate crime Howald allegedly committed on March 22 2020, in Basin, Montana. (Doc. 72 at 2-4.) Howald filed a second Motion to Dismiss Count II on December 23, 2022. (Doc 81.) The Court conducted a motion hearing on January 18, 2023. (Doc. 79.)
Howald lives in Basin, Montana. The Government alleges that Howald undertook a “self-described mission” on March 22, 2020, to rid the town of Basin of its LGBTQ+ community. (Doc. 41 at 3.) Howald armed himself with three semi-automatic rifles and open-carried them to the home of Individual 1, a lesbian woman in Basin. (Doc. 72 at 2-4.) Howald allegedly fired at least seven shots at Individual 1's home using an AK-47 style rifle. (Doc. 41 at 3-4.) Police recovered one bullet from inside Individual 1's home and located bullet holes in her fence, yard, deck, and house. (Id. at 4.) The Government asserts that Howald attempted to kill Individual 1 because of her sexual orientation. (Doc. 72 at 5.)
A bystander recorded on their cell phone an eight-minute rant from Howald immediately after the incident. (Doc. 41 at 17.) Howald made numerous derogatory and incriminating statements during the phone recording. These statements included that Howald sought to “get rid of the fuckin' lesbians, and . . . fuckin' queers;” that he “might have killed a fucking lesbian, I hope;” and that “they are going to die, they are going to leave, and it's gonna be awesome again.” (Doc. 72 at 3-4.)
Law enforcement arrived on the scene after receiving multiple 9-1-1 calls. (Id. at 4.) Howald fled from the scene after pointing a rifle at a responding officer. (Id.) Law enforcement stopped Howald's car and arrested him the following day, on March 23, 2020. (Id.) Law enforcement executed search warrants on Howald's vehicle and camper and found the following firearms and ammunition: a loaded Smith & Wesson .41 caliber revolver, a loaded AR-style 5.56 caliber rifle, an AK-style 7.62x39mm caliber with two banana clips, a Mossberg 30-06 caliber rifle with scope, two empty Tulammo 7.62x39mm caliber ammunition boxes, and one empty Barnes .41 caliber magazine box. (Id.)
The Court arraigned Howald on June 29, 2021. (Id. at 3.) The Government provided discovery to Howald on July 1, 2021. (Id.) Howald filed his first Motion to Dismiss (Doc. 29) on October 8, 2021, asking the Court to dismiss both counts of the Indictment. Howald argued that § 249(a)(2) reflects an unconstitutional extension of Congressional authority under the Commerce Clause. Howald also filed a Motion in Limine (Doc. 31) on October 8, 2021, that sought to exclude evidence of prior bad acts under F.R.E. 401, 402, and 403.
The Court deemed Howald competent to proceed following a competency hearing conducted on September 26, 2022. (Doc. 65.) The Government filed a Superseding Indictment on December 8, 2022. (Doc. 72.) The Court conducted a motion hearing on December 19, 2022. (Doc. 79.) The Court denied Howald's first Motion to Dismiss and granted, in part, and denied, in part, his Motion in Limine on January 4, 2023. (Doc. 83.)
Howald filed a second Motion to Dismiss on December 23, 2022. (Doc. 81.) Howald moves the Court to dismiss Count II of the Superseding Indictment. The Government filed its Response on January 6, 2023. (Doc. 84.) The Court conducted a motion hearing on January 18, 2023. (Doc. 93.) Howald's jury trial is scheduled for February 7, 2023.
In evaluating a motion to dismiss pursuant to Rule 12 of the Federal Rules of Criminal Procedure, a court must view the factual allegations in the indictment as true and decide only those issues capable of resolution without invading the province of the trier of fact. Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993).
Howald contends that the § 924(c)(1)(A) charge (Count II) must be dismissed because its predicate-a violation of § 249(a)(2)-does not require a “crime of violence” as defined by § 924(c)(3). (Doc. 82 at 4-9.) For the reasons discussed below, the Court will deny Howald's motion to dismiss Count II.
The first step in evaluating whether § 249(a)(2) may serve as a permissible § 924(c) predicate offense is determining whether the underlying statute proves “divisible” or “indivisible.” Mathis v. United States, 579 U.S. 500, 505 (2016). An indivisible statute “enumerates various factual means of committing a single element.” Id. at 506. A divisible statute, by contrast, sets out “elements in the alternative,” “thereby defin[ing] multiple crimes.” Id. at 505. “Elements” are what the jury must find unanimously and “beyond a reasonable doubt to convict the defendant.” Id. at 504. “Means” represent statutory phrases that a jury need not unanimously find. Descamps v. United States, 570 U.S. 254, 269-70 (2013). Examining the statutory text on its face reveals the potential divisibility of a statute. Mathis, 579 U.S. at 517-18.
A court applies the “categorical approach” in the context of indivisible statutes and the “modified categorical approach” in the context of divisible statutes. Under the categorical approach a court will assess “whether the full range of conduct covered by the statute falls within the meaning of” the term or element at issue. Calvillo-Palacios, 860 F.3d at 1288. This analysis “does not require-in fact, it precludes-an inquiry into how any particular defendant may [have] commit[ed] the crime.” United States v. Taylor, __ U.S. __, 142 S.Ct. 2015, 2020 (2022).
Under the modified categorical approach, a court first will determine which alternative element formed the basis of the charge. A court then assesses “whether this divisible offense of [the predicate] satisfies” the specific definition at issue “as a categorical matter.” Buck, 23 F.4th 919, 927. An offense may not serve as a predicate if the least culpable conduct criminalized by the underlying statute, either in whole or in the relevant, divisible part, proves broader than the statutory definition at issue.
The text of § 249(a)(2) criminalizes the following conduct: “willfully caus[ing] bodily injury to any person or, through the use of [dangerous weapons including a firearm], attempt[ing] to cause bodily injury to any person because of [a protected category].” § 249(a)(2)(A) (emphasis added). The statute additionally contains a sentencing enhancement provision for circumstances in which “death results from the offense,” or “the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.” § 249(a)(2)(A)(ii).
Howald provides no specific support for his contention that the Court should find § 249(a)(2) to be indivisible. (Doc. 82 at 9-11.) Howald cites Taylor, U.S. at __, 142 S.Ct. at 2019, for the proposition that a court always must apply the categorical approach to determine whether a federal felony may serve as a predicate for conviction under the force clause of § 924(c). (Doc. 82 at 9.) This interpretation presupposes a determination at the first step of the analysis that the predicate statute proves indivisible.
The Government contends that § 249(a)(2) proves divisible for the following three reasons: (1) the statute can be divided into completed offenses and attempts; (2) an attempt under the statute requires the use of a dangerous weapon, an element absent from the completed offense requirement; and (3) Howald's charge under § 249(a)(2) includes an attempt to kill that the Government must prove as a separate element. (Doc. 84 at 8-11.) The Court will consider, in turn, each argument regarding § 249(a)(2)'s divisibility.
The U.S. Supreme Court in Taylor examined the validity of a § 924(c) sentence enhancement for a Hobbs Act (18 U.S.C. § 1951) conviction. U.S. at __, 142 S.Ct. at 2019. Howald's interpretation of Taylor proves unavailing for two reasons. First, the relevant portion of Taylor uses “categorical approach” in broad terms. Id. at __, 2020. The U.S. Supreme Court distinguishes the two-step categorical analysis from a fact-intensive inquiry into the circumstances of the defendant's offense. Id. Taylor contains no explicit analysis of whether the statute at issue proved divisible or indivisible.
Second, the U.S. Supreme Court confined its inquiry in Taylor to attempted Hobbs Act robbery rather than considering the statutory provision as a whole. Id. at 2020-21. Taylor's reasoning required a determination that the statute was divisible: “Whatever one might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy the elements clause.” Id. at 2020 (emphasis in original). The focus of the U.S. Supreme Court's reasoning in Taylor fails to support Howald's contention that § 249(a)(2) proves indivisible. Id.
The Ninth Circuit has concluded that statutes generally are divisible between completed offenses and attempted offenses. United...
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