United States v. Linehan

• Decision Date: 22 December 2022
• Docket Number: 21-50206
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID LINEHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DAVID LINEHAN, Defendant-Appellant.

No. 21-50206

United States Court of Appeals, Ninth Circuit

December 22, 2022

Argued and Submitted May 20, 2022 Pasadena, California

Appeal from the United States District Court for the Central District of California Nos. 2:20-cr-00417- ODW-1, 2:20-cr-00417- ODW Otis D. Wright II, District Judge, Presiding

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

Mark R. Rehe (argued), Carling Donovan, Fred Sheppard, 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.

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SUMMARY^[**]

Criminal Law

The panel affirmed David Linehan's conviction for 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); reversed his conviction for 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); and remanded for resentencing, in a case in which Linehan, while in prison on federal charges, solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial.

Section 373(a) 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." The panel addressed whether, under the categorical approach, transportation of an explosive (§ 844(d)) and using a facility of interstate commerce with intent that a murder be committed (§ 1958(a)) are crimes of violence under § 373(a).

The panel held that a violation of § 844(d) is a categorical match to § 373(a). Rejecting an argument in which Linehan relied on United States v. Taylor, 142 S.Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A), the panel noted

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that Linehan was not convicted of soliciting the attempted transportation of an explosive; he was convicted of soliciting the completed offense. The panel concluded that a violation of § 844(d) requires the defendant to have undertaken a substantial step toward the use of violent force, which means that a violation of § 844(d) categorically requires the attempted use of physical force within the meaning of § 373(a). The panel rejected Linehan's argument that if the "attempted use" of force is the source of § 373(a) liability, the court must import a specific intent mens rea that is associated with attempt offenses, so that a predicate offense like § 844(d) that requires merely "knowing" misconduct is insufficient. The panel wrote that even if "attempted uses" of force did require a higher mens rea, § 844(d) contains a mens rea requirement that enables it to categorically qualify as an attempted use of force.

The panel held that, as the government now concedes, a violation of § 1958(a) does not qualify as a crime of violence under § 373(a) because, as the Solicitor General conceded in Grzegorczyk v. United States, 142 S.Ct. 2580 (2022), § 1958(a) does not require that a defendant actually enter into a murder-for-hire agreement, that he carry out or otherwise attempt to accomplish his criminal intent, or that the contemplated murder be attempted or accomplished by another person.

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OPINION

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.

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I

In 1989, David Linehan was involved in a serious car accident in Florida. United States v. Linehan, 835 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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

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affirmed Linehan's conviction on direct appeal. Id. at 91617.

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).

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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 . . . .

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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...