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USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 1 of 26
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`_____________
`No. 23-3143
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee
`
`v.
`LAUREN HANDY, et al.,
`Defendants-Appellants
`_____________
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`_____________
`UNITED STATES’ OPPOSITION TO APPELLANT’S FRAP 9(A)
`MEMORANDUM FOR RELEASE PENDING SENTENCING
`_____________
`
`On August 29, 2023, a federal jury convicted five defendants, including
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`appellant Lauren Handy, of violating 18 U.S.C. 241 (conspiracy against rights) and
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`18 U.S.C. 248(a)(1) (freedom of access to clinic entrances). The district court
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`ordered defendants detained pending sentencing under 18 U.S.C. 3143(a)(2)
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`because the Section 248(a)(1) offense for which defendants were found guilty is a
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`“crime of violence,” as defined in 18 U.S.C. 3156(a)(4)(A). As the court stated in
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`its August 29, 2023, minute order, and reiterated in a written order denying
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`defendants’ emergency motion for reconsideration, mandatory detention is
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`

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`required absent circumstances not present here. This Court should deny Handy’s
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`motion for release pending sentencing.
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`BACKGROUND
`
`A.
`
`Statutory Background
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`The Bail Reform Act, at 18 U.S.C. 3143(a)(2), requires the detention of a
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`defendant who is “awaiting imposition or execution of sentence” when the
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`individual has been “found guilty of an offense in a case described in” 18 U.S.C.
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`3142(f)(1)(A), (B), or (C). 18 U.S.C. 3143(a)(2). Among the offenses listed in
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`those subparagraphs is “a crime of violence.” 18 U.S.C. 3142(f)(1)(A). The Bail
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`Reform Act defines the term “crime of violence” to include “an offense that has as
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`an element of the offense the use, attempted use, or threatened use of physical
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`force against the person or property of another.” 18 U.S.C. 3156(a)(4)(A). An
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`“offense” is defined broadly under the Act and encompasses both felonies and
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`misdemeanors. 18 U.S.C. 3156(a)(2).
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`The Bail Reform Act provides one exception to its requirement of detaining,
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`post-conviction and pre-sentencing, individuals found guilty of a crime of
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`violence. The exception applies if (1) the court finds that “there is a substantial
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`likelihood that a motion for acquittal or new trial will be granted” or the
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`government has “recommended that no sentence of imprisonment be imposed on
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`the person,” and (2) the court finds “by clear and convincing evidence that the
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`person is not likely to flee or pose a danger to any other person or the community.”
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`18 U.S.C. 3143(a)(2)(A) and (B).
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`B.
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`Factual Background
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`1. On March 24, 2022, a federal grand jury returned a two-count indictment
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`against nine defendants, including Handy. Doc. 1.1 A tenth defendant was added
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`later by superseding indictment. Doc. 113. The indictment charged defendants
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`with violating 18 U.S.C. 241 by conspiring to injure, oppress, threaten, or
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`intimidate individuals in the free exercise of a federal statutory right, i.e., the right
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`to obtain and seek to obtain, and to provide and seek to provide, reproductive
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`health services, as guaranteed in 18 U.S.C. 248(a)(1). See Doc. 113, at 2-7. The
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`indictment further charged defendants with violating the Freedom of Access to
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`Clinic Entrances Act (FACE Act), 18 U.S.C. 248(a)(1), by using “force and
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`physical obstruction” to intentionally injure, intimidate, and interfere with a patient
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`of the clinic for obtaining reproductive health services, and with employees of the
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`clinic for providing such services. Doc. 113, at 7 (also charging defendants in
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`Count 2 with aiding-and-abetting under 18 U.S.C. 2).
`
`
`1 “Doc. __, at __” refers to the docket entry and page number of documents
`filed on the district court’s docket. “Tr. __” refers to the trial transcript on August
`25, 2023, a copy of which is provided in the appendix to this opposition.
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 4 of 26
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`The case proceeded to trial against five defendants, including Handy, on
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`August 15, 2023 (Minute Order Aug. 15, 2023).2 Following the close of evidence,
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`the court instructed the jury on both counts. As relevant here, the court told the
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`jury that, to convict on Count 2, the government had to prove beyond a reasonable
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`doubt that the defendant:
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`(1) “used force or physical obstruction”;
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`(2) “intentionally injured, intimidated, or interfered with [the patient of the
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`clinic] or the employees of the [clinic], or attempted to do so”; and
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`(3) “did so because [the patient] was obtaining or the [clinic] was providing
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`reproductive health services.”
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`Tr. 38.
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`The court defined the term “force” as “power and/or violence exerted upon
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`or against a person or property.” Tr. 38. It explained that “intimidate means to
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`place a person in reasonable expectation of bodily harm to themselves or another,”
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`and “interfere means to restrict a person’s freedom of movement.” Tr. 39.
`
`
`2 One defendant entered a guilty plea as to Count 1 (Minute Order Mar. 1,
`2023), and was sentenced to ten months’ imprisonment (Minute Order Aug. 7,
`2023). Trial as to three more defendants commenced on September 8, 2023. See
`Minute Order Sept. 8, 2023; see also Doc. 104, at 3 (setting separate trials for two
`groups of defendants). The remaining defendant is scheduled for trial beginning
`on October 23, 2023. See Minute Order Sept. 1, 2023.
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`

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`The court also provided the jury with a special verdict form through which it
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`would specify, in the event of a conviction, whether it found that the defendant
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`used either force or physical obstruction, or both, in violating Section 248(a)(1).
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`Doc. 413. The court provided the special verdict form in response to a government
`
`motion, which explained that such findings were necessary to determine the
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`applicable penalty under 18 U.S.C. 248(b), given that a lesser statutory maximum
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`applies where a defendant violates the FACE Act exclusively through nonviolent
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`physical obstruction. See Doc. 363; see also 18 U.S.C. 248(b).
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`After deliberating for two days, the jury found each defendant guilty on both
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`counts. Doc. 397, at 1. Using the special verdict form, the jury made two special
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`findings: that each defendant violated the FACE Act by force and by physical
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`obstruction. Doc. 397, at 1; see also Doc. 413.
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`2. Upon their conviction, the district court ordered defendants detained
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`pending sentencing. The court held that mandatory detention applied under 18
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`U.S.C. 3143(a)(2), by reference to 18 U.S.C. 3142(f)(1)(A), because defendants’
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`FACE Act offense constituted a “crime of violence” under the Bail Reform Act.
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`Specifically, the court found that a Section 248(a)(1) violation committed by force,
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`as the jury unanimously found, is categorically “an offense that has as an element
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`of the offense the use, attempted use, or threatened use of physical force against
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`the person or property of another,” 18 U.S.C. 3156(a)(4)(A). Minute Order Aug.
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`29, 2023. The court further found, consistent with the required inquiry under 18
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`U.S.C. 3143(a)(2)(A), that there was “no substantial likelihood that a motion for
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`acquittal or new trial w[ould] be granted,” and that the prosecution would
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`“recommend a term of incarceration as to each Defendant.” Minute Order Aug.
`
`29, 2023. Accordingly, the court ordered defendants, including Handy, detained.
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`Handy and another defendant filed emergency motions for reconsideration,
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`arguing that their presentence detention was “governed under the more lenient
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`provisions of 18 U.S.C. § 3143(a)(1), not those of § 3143(a)(2)” because a
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`conviction under the FACE Act “is not categorically a ‘crime of violence.’” Doc.
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`387, at 1 (emphasis omitted); see also Doc. 389. The government opposed the
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`motion (Doc. 395), which the district court treated as joined by all defendants
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`(Minute Order Aug. 30, 2023), and Handy filed a reply (Doc. 396).
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`The district court denied the motion in a written order. Doc. 397. The court
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`explained that even though a defendant can violate the FACE Act through
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`nonviolent means, the Act “creates distinct offenses, some of which are crimes of
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`violence.” Doc. 397, at 2. Employing the modified categorical approach, the court
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`examined the elements of the Act’s offenses and the Act’s punishment scheme,
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`which applies different sanctions depending on “the kind of conduct a defendant
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`employed.” Doc. 397, at 2. The court thus concluded that “the FACE Act is
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`‘divisible’” because “it defines ‘multiple crimes’ based on punishment.” Doc. 397,
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`at 2 (quoting Mathis v. United States, 579 U.S. 500, 518 (2016)).
`
`As relevant here, the court determined that one of the Act’s penalty
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`provisions—specifically, 18 U.S.C. 248(b)(1)—applies to conduct that involves
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`“violent physical obstruction, force, or threat of force,” and where such action is
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`proven, “provides for a year of imprisonment.” Doc. 397, at 2. The court
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`concluded that “[a]ll” violations of this subsection “are necessarily crimes of
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`violence” because they have, as an element of the offense, the use, attempted use,
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`or threatened use of force against the person or property of another. Doc. 397, at 3.
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`In contrast, a lesser misdemeanor penalty applies when a defendant violates the
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`Act through exclusively nonviolent physical obstruction. Doc. 397, at 2.3
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`Accordingly, the court looked to other materials, like the indictment, jury
`
`instructions, and special verdict form, “to determine of which sub-offense a
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`defendant was convicted and * * * whether that sub-offense is a crime of
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`violence.” Doc. 397, at 3 (citing United States v. Redrick, 841 F.3d 478, 482 (D.C.
`
`Cir. 2016)). Here, the court explained, the jury specifically found defendants acted
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`by “force,” with force defined as “power and/or violence exerted upon or against a
`
`
`3 The Act also has several felony offenses, including for a second or
`subsequent offense (punishable by up to three years’ imprisonment), where “bodily
`injury results” (punishable by up to ten years’ imprisonment), and where “death
`results” (punishable for any term of years or for life). 18 U.S.C. 248(b).
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`

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`person or property.” Doc. 397, at 3. Consequently, the court concluded that
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`defendants had been convicted of the “more serious misdemeanor” under Section
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`248(b)(1), which requires “the use of force, the threat of force, or the use of violent
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`physical obstruction.” Doc. 397, at 3. Thus, in short, the “guilty verdict as to
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`‘force’” meant that the jury had “convicted each Defendant of a crime of violence.”
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`Doc. 397, at 3. Accordingly, mandatory detention applied under 18 U.S.C.
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`3143(a)(2), and the court denied the motion. Doc. 397, at 3-4.
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`Three defendants, including Handy, appealed from the detention order.
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`Docs. 398, 403, 405. Handy filed her Rule 9(a) motion with this Court.4 The
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`government herein responds consistent with this Court’s September 8, 2023 order.
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`DISCUSSION
`
`This Court should deny Handy’s motion because the district court correctly
`
`determined that defendants, including Handy, are subject to mandatory detention
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`under 18 U.S.C. 3143(a)(2). Defendants were convicted of a “crime of violence”
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`under 18 U.S.C. 3142(f)(1)(A) and 3156(a)(4)(A) because the government’s
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`superseding indictment charged them with violating, and the jury later convicted
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`defendants of having violated, 18 U.S.C. 248(a)(1) by using “force” to
`
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`4 On September 8, 2023, this Court consolidated the three appeals and
`issued an order to show cause by September 14, 2023, why it should not require
`joint briefing under the court-proposed schedule.
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 9 of 26
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`“intentionally injure[], intimidate[] or interfere[] with, or attempt[] to injure,
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`intimidate, or interfere with” a clinic patient and employees of a reproductive
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`health clinic because the patient was obtaining, and the clinic was providing,
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`reproductive health services. 18 U.S.C. 248(a)(1).
`
`As the district court correctly explained, Section 248(a)(1) is “divisible”
`
`because it creates separate misdemeanor offenses that contain different elements
`
`and carry different punishments. Mathis v. United States, 579 U.S. 500, 505
`
`(2016). Consequently, this Court must use a “modified categorical approach” to
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`determine, using a limited class of case documents, which of those misdemeanor
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`offenses forms the basis of defendants’ convictions. Ibid. Here, the superseding
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`indictment and the jury’s special verdict form make clear that defendants were
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`convicted of violating the more serious misdemeanor offense in Section 248(a)(1),
`
`which categorically requires a defendant’s use of force, threat of force, or violent
`
`physical obstruction. None of Handy’s arguments, which misunderstand and
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`misread the FACE Act, demonstrates otherwise.
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`Consequently, because defendants were convicted of a crime of violence and
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`cannot show that the district court erred in finding inapplicable the exception to
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`presentence detention in 18 U.S.C. 3143(a)(2)(A) and (B), this Court should deny
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`Handy’s motion seeking release pending sentencing.
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 10 of 26
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`A.
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`Standard Of Review
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`This Court reviews the district court’s legal conclusions de novo and its
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`findings of fact for clear error. See, e.g., Khan v. Obama, 655 F.3d 20, 25 (D.C.
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`Cir. 2011); United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).
`
`B.
`
`The Court Must Use The Modified Categorical Approach To Determine
`Whether Defendants’ FACE Act Offense Constitutes A Crime Of Violence
`
`1. Where a statute authorizes enhanced penalties based on a defendant’s
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`conviction for a particular type of offense, courts often will use a “categorical
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`approach” to determine whether the defendant’s crime qualifies as a version of the
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`offense in question. See Borden v. United States, 141 S. Ct. 1817, 1822 (2021)
`
`(observing that the categorical approach is “applicable in several statutory
`
`contexts”). Under this approach, a court “focus[es] solely on whether the elements
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`of the crime of conviction sufficiently match” those of the offense at issue.
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`Mathis, 579 U.S. at 504. Specifically, the elements of the crime of conviction must
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`be “the same as, or narrower than, those of” the pertinent offense. Id. at 503. If
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`they are, then the crime for which the defendant was convicted is a “categorical[]
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`match” for the offense. Borden, 141 S. Ct. at 1822.
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`Courts apply a “modified categorical approach,” however, when statutes
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`“have a more complicated (sometimes called ‘divisible’) structure.” Mathis, 579
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`U.S. at 505 (citation omitted). A statute is divisible for purposes of the modified
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`categorical approach where it “list[s] elements in the alternative, and thereby
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 11 of 26
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`define[s] multiple crimes.” Ibid. This can occur when the “statutory alternatives
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`carry different punishments.” Id. at 518. If a statute defines multiple, separate
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`crimes, a court must “look[] to a limited class of documents * * * to determine
`
`what crime,” among the various statutory alternatives, “[the] defendant was
`
`convicted of.” Id. at 505-506. Such documents include a case’s “charging
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`documents,” as well as the “jury instructions and verdict forms” used. Johnson v.
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`United States, 559 U.S. 133, 144 (2010). After consulting such documents “to
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`determine which statutory phrase was the basis for the [defendant’s] conviction,”
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`ibid., the court does “as the categorical approach commands” and conducts an
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`elements-based analysis to decide whether the defendants’ crime categorically
`
`qualifies as the relevant offense, Mathis, 579 U.S. at 506—here, a crime of
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`violence.
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`2. The modified categorical approach applies here because, at 18 U.S.C.
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`248(a), the FACE Act sets forth multiple, alternative crimes that carry different
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`punishments. Congress enacted the FACE Act to address escalating violence and
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`obstructive interference with reproductive healthcare providers and facilities, as
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`well as with individuals seeking or using their services. S. Rep. No. 117, 103d
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`Cong., 1st Sess. 3-10 (1993). Among other things, the FACE Act makes it
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`unlawful for any person to
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`by force or threat of force or by physical obstruction, intentionally
`injure[], intimidate[] or interfere[] with or attempt[] to injure,
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`intimidate or interfere with any person because that person is or has
`been, or in order to intimidate such person or any other person or any
`class of persons from, obtaining or providing reproductive health
`services.
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`18 U.S.C. 248(a)(1).
`
`In Section 248(b), the FACE Act sets forth different penalties for violent and
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`nonviolent misdemeanor violations of Section 248(a)(1). Where a defendant uses
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`“exclusively a nonviolent physical obstruction” to violate the Act, the term of
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`imprisonment for a first-time offense of the statute may “be not more than six
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`months.” 18 U.S.C. 248(b). For all other misdemeanor violations of Section
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`248(a)(1)—namely, where a person, “by force or threat of force or by physical
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`obstruction,” intentionally injures, intimidates, or interferes with a person’s receipt
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`or provision of reproductive health services—the term of imprisonment for a first-
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`time offense may not be “more than one year.” 18 U.S.C. 248(b)(1). In still other
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`circumstances, the Act sets forth statutory alternatives that, when found beyond a
`
`reasonable doubt, amount to felony offenses with different statutory maximum
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`sentences. 18 U.S.C. 248(b).
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`Because the statute contains a specific offense for exclusively nonviolent
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`physical obstruction and imposes a less severe punishment, the more serious
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`misdemeanor in Section 248(a)(1) with its harsher punishment must be read to
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`apply to conduct that necessarily includes force, threat of force, or violent physical
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`obstruction. Handy does not disagree, arguing that because Section 248(b)(2)
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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 13 of 26
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`“provides a less severe punishment only for ‘exclusively nonviolent physical
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`obstruction,’” the “higher punishment in subsection (b)(1)” applies when a
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`defendant’s physical obstruction “is violent” or is accompanied by “force” or
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`“threat of force.” Mot. 18, 20-21; see also Mot. 20-21 (acknowledging that the
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`more serious Section 248(a)(1) misdemeanor encompasses conduct that is “not
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`‘exclusive[ly]’” nonviolent).
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`* * *
`
`In summary, the district court correctly held that “the FACE Act is
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`‘divisible’”—thus warranting use of the modified categorical approach—because it
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`“defines ‘multiple crimes’” in Section 248(a)(1) and “delineat[es] different
`
`penalties” for each of those crimes in Section 248(b). Doc. 397, at 2 (quoting
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`Mathis, 579 U.S. at 518); see also United States v. Khatallah, 41 F.4th 608, 633
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`(D.C. Cir. 2022) (recognizing the general rule that “two statutory alternatives are
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`distinct offenses if they carry different punishments”), cert. denied, 143 S. Ct. 2667
`
`(2023).
`
`C. Defendants’ Section 248(a)(1) Offense Is A “Crime Of Violence” That
`Requires Mandatory Detention Under 18 U.S.C. 3143(a)(2)
`Applying the modified categorical approach, the district court correctly
`
`determined that defendants were convicted of “[t]he more serious misdemeanor”
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`under Section 248(a)(1), and that this offense “necessarily” constitutes a crime of
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`violence under the Bail Reform Act. Doc. 397, at 3.
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`1. The record establishes that defendants were charged with and convicted
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`of the more serious misdemeanor offense in Section 248. See Johnson, 559 U.S. at
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`144 (summarizing the documents a court can consider under the modified
`
`categorical approach). As the district court discussed, the superseding indictment
`
`alleged that defendants violated Section 248 “by [using] force”—and in the
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`alternative, by using “physical obstruction”—to “intentionally injure, intimidate,
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`and interfere with” a patient and employees of the clinic. Doc. 113, at 7; see also
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`Doc. 397, at 3. Consequently, with the jury having been given the opportunity to
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`“convict for force or violent physical obstruction under 18 U.S.C. § 248(b)(1) or
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`for nonviolent physical obstruction under subsection (b)(2),” the court “prepared a
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`special verdict form” to find either or both offense options. Doc. 397, at 3. Using
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`that form, the jury made a “special finding” that “each Defendant used force to
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`prevent access to or provision of reproductive health services at the clinic at issue.”
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`Doc. 397, at 1.5
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`2. The more serious Section 248 misdemeanor offense for which defendants
`
`were convicted categorically qualifies as a crime of violence under the Bail
`
`Reform Act. As discussed above, a crime of violence under the Bail Reform Act is
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`“an offense that has as an element of the offense the use, attempted use, or
`
`
`5 The jury found that “Defendants also used physical obstruction” in
`violating Section 248. Doc. 397, at 1.
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 15 of 26
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`threatened use of physical force against the person or property of another.” 18
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`U.S.C. 3156(a)(4)(A). As the Supreme Court explained in Johnson, “the phrase
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`‘physical force’ means violent force—that is, force capable of causing physical
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`pain or injury to another person.” 559 U.S. at 140 (emphasis omitted) (construing
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`the Armed Career Criminal Act at 18 U.S.C. 924(e)(2)(B)(i)); see also Stokeling v.
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`United States, 139 S. Ct. 544, 550-554 (2019) (explaining that “force” has a well-
`
`understood meaning and that Johnson “does not require any particular degree of
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`likelihood or probability that the force used will cause physical pain or injury; only
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`potentiality”). And later, in Stokeling, the Court rejected a claim that “minor uses
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`of force do not constitute ‘violent force,’” holding that “force is ‘capable of
`
`causing physical injury’ within the meaning of Johnson when it is sufficient to
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`overcome a victim’s resistance.” Stokeling, 139 S. Ct. at 554.
`
`The elements of defendants’ crime of conviction satisfy the definition of a
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`crime of violence. The first two types of conduct covered by the more serious
`
`misdemeanor in Section 248(a)(1) (force or threat of force) expressly fall within
`
`the definition of a crime of violence. See 18 U.S.C. 3156(a)(4)(A) (requiring “the
`
`use * * * or threatened use of physical force”); see also Tr. 38 (jury instructions
`
`defining “force” as “power and/or violence exerted upon or against a person or
`
`property”). Accordingly, they categorically qualify as such an offense. That is
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 16 of 26
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`especially so where, to convict, the jury must find the defendant used force or
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`threat of force to intentionally cause injury, intimidation, or interference.
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`The third type of conduct (violent physical obstruction) also categorically
`
`qualifies as a crime of violence under the Bail Reform Act. The FACE Act
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`requires that a defendant’s violent physical obstruction “intentionally injure[],
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`intimidate[] or interfere[] with” a person because of their provision or receipt of
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`reproductive health services. 18 U.S.C. 248(a)(1). Violent physical obstruction
`
`that injures a person clearly constitutes a crime of violence. So, too, does violent
`
`physical obstruction that intimidates a person because it involves the threat of force
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`to place an individual “in reasonable apprehension of bodily harm” to themselves
`
`or another. 18 U.S.C. 248(e)(3) (emphasis added); see also Tr. 39. And unlike
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`nonviolent physical obstruction (which can intentionally interfere with a person’s
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`receipt or provision of services by impeding access to a facility without conduct
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`capable of producing pain or physical injury), violent physical obstruction that
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`interferes with a person qualifies as a crime of violence because it involves the
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`threat or “potentiality” of force, Stokeling, 139 S. Ct. at 554, to “restrict [the]
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`person’s freedom of movement,” 18 U.S.C. 248(e)(2); see also Tr. 39.
`
`D. Handy Misunderstands And Misreads The FACE Act When Discussing And
`Applying The Modified Categorical Approach
`Handy challenges the district court’s application of the modified categorical
`
`approach and its conclusion that the more serious Section 248(a)(1) misdemeanor
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 17 of 26
`- 17 -
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`categorically constitutes a crime of violence under the Bail Reform Act. However,
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`her arguments rest on misunderstandings and misreadings of the FACE Act and
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`should be rejected.
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`1. First, Handy appears to suggest that the district court should have applied
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`the categorical approach, and not the modified categorical approach, in analyzing
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`her crime of conviction. Mot. 8-12, 17. However, Handy’s own discussion of
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`Supreme Court case law confirms that the district court’s choice was the correct
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`one. As Handy acknowledges, “the Supreme Court has generally applied a
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`‘modified categorical rule’ when a crime may be committed by alternative
`
`elements.” Mot. 10. And “[i]f statutory alternatives carry different punishments,
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`then * * * they must be elements.” Mot. 10 (quoting Mathis, 579 U.S. at 518)
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`(first alteration in original).
`
`That is exactly the case here. As discussed, Section 248(a)(1) sets forth
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`separate criminal offenses that contain different elements and impose different
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`punishments. One of those offenses applies to conduct that exclusively involves
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`“nonviolent physical obstruction,” and it carries a sentence of up to six months. 18
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`U.S.C. 248(b). The second offense applies to conduct involving force, threat of
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`force, or violent physical obstruction, and it carries a sentence of up to one year.
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`18 U.S.C. 248(a) and (b). Consequently, as Handy admits, Section 248(a)(1)
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`“subjects ‘exclusively nonviolent physical force’ to a lesser punishment,” thus
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 18 of 26
`- 18 -
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`“rendering it a separate element” in a separate crime. Mot. 17. The modified
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`categorical approach therefore applies in this case.
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`2. Second, Handy argues that, under the Supreme Court’s plurality and
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`concurring decisions in Borden, Section 248(a)(1)’s more serious misdemeanor
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`crime is not categorically a crime of violence because that provision “forbids the
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`use of ‘force’”—including “the reckless use of force”—“without requiring that [the
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`force] be directed ‘against another.’” Mot. 14 (emphasis omitted) (quoting 18
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`U.S.C. 248(a)(1)). Specifically, Handy cites the conclusions in Borden’s plurality
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`opinion that the Armed Career Criminal Act’s use of “[t]he phrase ‘against
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`another,’ when modifying the [phrase] ‘use of force,’ demands that the perpetrator
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`direct his action at, or target, another individual,” and that “[r]eckless conduct is
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`not aimed in that prescribed manner.” Mot. 13 (emphasis omitted) (quoting
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`Borden, 141 S. Ct. at 1825); see also Mot. 13 (“Justice Thomas’s deciding
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`concurrence * * * agreed that a ‘crime of violence’ excludes reckless force.”).
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`Handy argues that because Section 248(a)(1)’s more serious misdemeanor
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`ostensibly includes reckless uses of force, the offense “sweeps more broadly than
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`the crime-of-violence meaning of ‘force.’” Mot. 17.
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`But this argument fails at the outset because Section 248(a)(1)’s more
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`serious misdemeanor does “demand[] that the perpetrator direct his action at, or
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`target, another individual,” Borden, 141 S. Ct. at 1825, and it therefore does not
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 19 of 26
`- 19 -
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`proscribe merely reckless conduct. Section 248(a)(1) prohibits an individual from
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`using force, threat of force, or violent physical obstruction to “intentionally
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`injure[], intimidate[] or interfere[] with any person” because that person is or has
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`been obtaining or providing reproductive health services, or seeks to do so. 18
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`U.S.C. 248(a)(1). The offense therefore requires that a defendant have engaged in
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`certain prohibited conduct when targeting a particular individual, with the goal of
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`subjecting the individual to a specific result. Accordingly, Section 248(a)(1)
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`prohibits “intentional[],” 18 U.S.C. 248(a)(1), and not merely reckless, conduct.
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`See also Voisine v. United States, 579 U.S. 686, 691-692 (2016) (contrasting
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`reckless conduct, which involves conscious disregard of a substantial risk of harm,
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`with intentional conduct, which has a “result as a ‘conscious object’” of the action
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`(citation omitted)).
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`Given Section 248(a)(1)’s explicit reference to intentional conduct, it is
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`unsurprising that Handy fails to cite any case holding that merely reckless uses of
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`force can violate the statute. See Mot. 14-17. To the contrary, courts—including
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`one from this circuit—have held that the statute requires intentional action and a
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`specific purpose by the defendant. See, e.g., United States v. Gregg, 226 F.3d 253,
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`262 (3d Cir. 2000) (describing “the activity regulated by FACE” as including “the
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`intentional interference and intimidation of persons obtaining and providing
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`reproductive health services” through “physical obstruction and destruction of
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 20 of 26
`- 20 -
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`reproductive health clinics”), cert. denied, 532 U.S. 971 (2001); United States v.
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`Retta, 840 F. Supp. 2d 262, 268 (D.D.C. 2012) (requiring that the defendant have
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`“engaged in the obstructive acts because of his belief that his targets were
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`obtaining or providing such services” (emphasis omitted)); United States v.
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`Wilson, 2 F. Supp. 2d 1170, 1171 (E.D. Wis. 1998) (requiring “intentional
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`interference or attempt to interfere with persons entering or exiting [a] clinic
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`* * * done for the express purpose of preventing such persons from obtaining or
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`providing reproductive health services”), aff’d, United States v. Balint, 201 F.3d
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`928 (7th Cir. 2000).
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`3. Unable to locate any supporting case law, Handy resorts to hypotheticals
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`that purport to show that a defendant could be convicted of Section 248(a)(1)’s
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`more serious misdemeanor using reckless force that does not target any person.
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`The hypotheticals, however, show nothing of the sort. Handy first envisions an
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`individual who “willfully run[s] at full speed into an open clinic doorway” to
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`“intimidate someone seeking an abortion.” Mot. 16. That conduct involves an
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`intentional, threatened use of force—not a reckless use of force—against another
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`person and therefore would satisfy the definition of a crime of violence. See 18
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`U.S.C. 3156(a)(4)(A). Her hypothetical posits, however, that another person
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`“suddenly appears in the doorway,” meaning that a different individual—the
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`person standing in the doorway and not the person seeking an abortion—is
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`

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`USCA Case #23-3143 Document #2016523 Filed: 09/12/2023 Page 21 of 26
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`potentially impacted by the runner’s conduct. Mot. 16. However, the hypothetical
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`still involves an intentional, threatened use of force against

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