United States v. Linehan

• Decision Date: 22 December 2022
• Docket Number: 21-50206
• Citation: 56 F.4th 693
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David LINEHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.4th 693

UNITED STATES of America, Plaintiff-Appellee,

v.David LINEHAN, Defendant-Appellant.

No. 21-50206

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 20, 2022 Pasadena, California

Filed December 22, 2022

Elizabeth Richardson-Royer, San Francisco, California, for Defendant-Appellant.

Mark R. Rehe and Daniel E. Zipp, Assistant United States Attorneys; Merrick B. Garland, United States Attorney General, Office of the United States Attorney, San Diego, California, for Plaintiff-Appellee.

Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater,^* District Judge.

BRESS, Circuit Judge:

While in prison on federal charges, David Linehan solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial. The federal solicitation statute, 18 U.S.C. § 373, punishes the solicitation of federal crimes that have "as an element the use, attempted use, or threatened use of physical force against property or against the person of another," which is to say violent crimes. In this case, we address whether, under the categorical approach, two predicate crimes—transportation of an explosive, 18 U.S.C. § 844(d), and using a facility of interstate commerce with intent that a murder be committed, 18 U.S.C. § 1958(a) —are crimes of violence under § 373(a).

We hold that a violation of § 844(d) is a categorical match to § 373(a), but that a violation of § 1958(a) is not, a point the government now concedes. We affirm in part, reverse in part, and remand for resentencing.

I

In 1989, David Linehan was involved in a serious car accident in Florida. United States v. Linehan , 835 F. App'x 914, 915–16 (9th Cir. 2020). David Sims, a Florida State Trooper, arrived at the scene and cited Linehan for careless driving. Linehan disputed the citation, and a state court held a hearing at which Sims testified. The state court found that Linehan was at fault for the accident and fined him less than $200.

Tragically, the other driver in the accident later committed suicide. Linehan , 835 F. App'x at 916. Linehan came to believe that Sims unfairly blamed him for the other driver's death. Id. Linehan's automobile insurance policy was also used to compensate the other driver's estate. In connection with those proceedings, Linehan was involved in "contentious litigation" over his own culpability for the accident and the other driver's death. Somewhat improbably, Linehan developed an obsession with Sims over this incident and spent years harassing and threatening him.

In 2001, Linehan moved to China. He also lived for periods in Thailand, Hong Kong, and Cambodia. While in Asia, Linehan continued his "30-year history of threatening harm to government officials who did not respond to his grievances," which culminated in Linehan threatening to firebomb the U.S. Embassy in Phnom Penh. Linehan , 835 F. App'x at 916. This led to his expulsion from Cambodia and his arrest upon returning to the United States. Id. at 915. Sims testified against Linehan at his criminal trial for the Cambodia threats, after which a jury convicted Linehan of transmitting a threat in foreign commerce. Id. Linehan was sentenced to 33 months' imprisonment. Id. at 916. We affirmed Linehan's conviction on direct appeal. Id. at 916–17.

While in federal prison, Linehan contacted a fellow inmate whom he believed was soon to be released and asked him to locate Sims's residential mailing address for the purpose of mailing a bomb to Sims's home. In a series of handwritten messages that spanned nearly a month, Linehan provided instructions to his fellow inmate on how to find Sims and construct an explosive device. Linehan promised to pay the inmate $200 up front, with a further $25,000 payment upon confirmation that the bomb had been sent to Sims. The inmate turned on Linehan, notified the FBI, and agreed to cooperate.

An undercover agent posing as a willing bomber contacted Linehan, and Linehan arranged for the agent to be paid $200 in cash. Linehan and the undercover agent engaged in several recorded conversations during which Linehan confirmed that he wanted the agent to send a bomb to Sims's house, and that he would pay $25,000 to see it done. Linehan wanted the bomb to "blow Sims' f—ing head up" and "rip his lungs out."

For this, Linehan was charged with a new round of federal offenses: retaliating against a trial witness (Sims), in violation of 18 U.S.C. § 1513(a) (Count 1); soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, in violation of 18 U.S.C. §§ 373(a) and 844(d) (Count 2); and soliciting the use of facilities of commerce with the intent that a murder be committed, in violation of 18 U.S.C. §§ 373(a) and 1958(a) (Count 3).

Before trial, Linehan moved to dismiss Counts 2 and 3 for failure to state an offense. He argued that the underlying offenses— § 844(d) and § 1958(a) —did not have "as an element the use, attempted use, or threatened use of physical force," as § 373(a) requires. The district court denied Linehan's motion. Linehan unsuccessfully renewed his arguments concerning Counts 2 and 3 at the conclusion of the trial.

The jury acquitted Linehan on Count 1, but convicted him on Counts 2 and 3. Before his sentencing, Linehan renewed his arguments for acquittal for a third time, but the district court again denied his motion. The district court sentenced Linehan to consecutive 60-month sentences on Counts 2 and 3, for a total term of 120 months' imprisonment, to be followed by three years of supervised release. We review de novo the district court's denials of pretrial motions to dismiss and motions for acquittal. United States v. Riggins , 40 F.3d 1055, 1057 (9th Cir. 1994).

II

Under the federal solicitation provision, which is entitled "Solicitation to commit a crime of violence,"

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned ....

18 U.S.C. § 373(a). To determine whether a defendant solicited a qualifying federal offense, we apply the categorical approach. See United States v. Devorkin , 159 F.3d 465, 469 (9th Cir. 1998) ("[W]e hold that § 373 requires a categorical approach, rather than a fact-based, case-by-case analysis of the actual result of the solicitation."); see also, e.g., United States v. Doggart , 947 F.3d 879, 887–88 (6th Cir. 2020) (applying categorical approach to § 373(a) ); United States v. Gillis , 938 F.3d 1181, 1201 (11th Cir. 2019) (per curiam) (same).

Under the categorical approach, we consider not the specific facts of a given conviction but whether the elements of the predicate offense meet the federal definition of a "crime of violence." Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). "If any—even the least culpable—of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as ... [a] predicate." Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 1822, 210 L.Ed.2d 63 (2021) (plurality opinion).

The language used in § 373(a) is substantially similar to other "crime of violence" or "violent felony" provisions found elsewhere in the federal criminal code. See 18 U.S.C. §§ 16(a), 924(c)(3)(A), 924(e)(2)(B)(i). Although we have not before interpreted § 373(a)'s "elements clause" (also known as a "force clause") to any great extent, the parties agree that the same basic framework used for other elements clauses applies to the elements clause in § 373(a). Thus, the parties agree that the phrase "physical force" here, as elsewhere, means "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). And the phrase "against property or against the person of another" requires that the crime solicited be one that requires purposeful or knowing conduct, see Borden , 141 S. Ct. at 1826–28, or conduct evincing extreme recklessness, see United States v. Begay , 33 F.4th 1081, 1093–94 (9th Cir. 2022) (en banc).

Both the solicited offenses here have the necessary mens rea levels (knowledge or higher), for purposes of Borden . See 18 U.S.C. §§ 844(d), 1958(a). The key question is thus whether, under the categorical approach, they have as an element the use, attempted use, or threatened use of physical force.

III

We begin with the transportation of an explosive, in violation of 18 U.S.C. § 844(d). The relevant portion of § 844(d) provides that:

Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined under this title, or both ....

Id. To convict a defendant of a completed offense under § 844(d), the government must prove that he "(1) transported or received in interstate commerce (2) any explosive (3) with the knowledge or intent that it would be used to kill, injure, or intimidate any individual" or damage any property. United States v. Michaels , 796 F.2d 1112, 1118 (9th Cir. 1986).

A

Linehan focuses some of his argument on that portion of § 844(d) that criminalizes the attempted transportation of an explosive. Relying on the Supreme Court's recent decision in United States v. Taylor , ––– U.S. ––––, 142 S. Ct....