throbber
USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 1 of 37
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`______________________________________________________
`
`Case Nos. 23-3143, 23-3146, 23-3147, 23-3156, 23-3158
`______________________________________________________
`
`UNITED STATES of AMERICA
`vs.
`LAUREN HANDY, et al.
`
`_________________________________________________________
`Appeal from the United States District Court
`for the District of Columbia
`Case No. 1:22-cr-00096
`The Honorable Colleen Kollar-Kotelly, U.S. District Judge
`
`___________________________________________________________________
`
`BRIEF OF DEFENDANTS-APPELLANTS
`
`
`Stephen M. Crampton
`Martin A. Cannon (Application for Admission Pending)
`THOMAS MORE SOCIETY
`P.O. Box 4506
`Tupelo, MS 38803
`(662) 255-9439
`scrampton@thomasmoresociety.org
`mcannon@thomasmoresociety.org
`
`Dennis E. Boyle, Esquire Boyle & Jasari
`1050 Connecticut Ave, NW Suite 500
`Washington, DC 20036
`dboyle@boylejasari.com
`Telephone: (202) 798-7600
`
`Counsel for Lauren Handy and Jean Marshall
`
`
`
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 2 of 37
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`
`
`
`
`
`
`Howard J Walsh , III
`3712 Cardiff Court
`Chevy Chase, MD 20815
`301-602-8721
`Fax: 301-576-7900
`Email: hwalshesq@gmail.com
`
`
`
`
`
`Counsel for William Goodman
`
`
`John C. Kiyonaga
`JOHN C. KIYONAGA LAW OFFICE
`600 Cameron Street
`Alexandria, VA 22314
`(703) 739-0009
`Fax: (703) 549-2988
`Email: jkiyonaga@earthlink.net
`
`Counsel for Herb Geraghty
`
`
`Christopher M. Davis
`Davis & Davis
`1350 Connecticut Ave., NW
`Suite 202
`Washington, DC 20036
`Work (202) 234-7300 Ext. 101
`Cell (202) 487-6980
`Fax (202) 830-0056
`DavisLawDC.com
`
`Counsel for Jonathan Darnel
`
`
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 3 of 37
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`TABLE OF CONTENTS
`
`
`INTRODUCTION ...................................................................................... 1
`JURISDICTIONAL STATEMENT ........................................................... 3
`ISSUES PRESENTED .............................................................................. 4
`STATEMENT OF THE CASE .................................................................. 4
`SUMMARY OF ARGUMENT ................................................................... 7
`ARGUMENT ............................................................................................. 9
`I. A “Crime of Violence” is One That “Always Requires” a Finding of
`Actual, Threatened, or Attempted Force. ...................................... 11
`II. “Reckless” Force—i.e., Intentional Use of Force that Does Not Seek
`to Harm Another—is Not a Crime of Violence. .............................. 13
`III. A FACE “Force” Conviction Can Include a Specific Intent to
`“Interfere With” (Rather Than to “Injure”) Another, and Thus is
`Not a Crime of Violence. ................................................................. 17
`A. FACE “force” convictions can include even reckless conduct, as
`shown by the statute’s text. ........................................................ 17
`B. Other courts agree that FACE prohibits recklessness. .............. 20
`C. Defendants do not dispute that FACE requires general intent.
` 222
`IV. Defendants’ “Physical Obstruction” Convictions are also not
`Crimes of Violence. ....................................................................... 244
`V. Defendants are Entitled to Release Under § 3143(a)(1) Because
`They are not Flight Risks or a Danger to Others. ......................... 26
`CONCLUSION ........................................................................................ 27
`
`
`
`i
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`

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`
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`
`
`ii
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`

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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 5 of 37
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`TABLE OF AUTHORITIES
`
`
`Cases
`Borden v. United States,
` 141 S. Ct. 1817 (2021) .................................................................. passim
`
`Craver v. State,
` 2015 WL 3918057(Tex. App., June 25, 2015) ...................................... 16
`
`Johnson v. United States,
` 559 U.S. 133 (2010) .......................................................................... 7, 13
`
`Jones v. United States,
` 39 F.4th 523 (8th Cir. 2022) ................................................................... 9
`
`Khan v. Obama,
` 655 F.3d 20 (D.C. Cir. 2011)................................................................. 11
`
`Leocal v. Ashcroft,
` 543 U.S. 1 (2004) .................................................................................... 7
`
`Mathis v. United States,
` 579 U.S. 500 (2016) ........................................................................ 12, 25
`
`New York by James v. Griepp,
` 11 F.4th 174 (2d Cir. 2021) .................................................................. 14
`
`New York v. Griepp,
` 991 F.3d 81 (2d Cir. 2021) .............................................................. 14, 18
`
`
`
`
`
`
`iii
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`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 6 of 37
`
`Odum v. Rayonier, Inc.,
` No. CIV.A CV204-190, 2005 WL 3440817 (S.D. Ga. Dec. 14, 2005) ... 21
`
`People v. Griepp,
` 997 F.3d 1258 (2d Cir. 2021) ................................................................ 14
`
`Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
`Activists, 41 F. Supp. 2d 1130, 1149 (D. Or. 1999) .............................. 20
`
`
`Rosemond v. United States,
` 572 U.S. 65 (2014) .................................................................................. 9
`
`Sharpe v. Canole,
` 386 F.3d 482 (2d Cir. 2004) .................................................................. 19
`
`Terry v. Reno,
` 101 F.3d 1412 (D.C. Cir. 1996) ............................................................. 19
`
`United States v. Bonner,
` 826 F. App’x 52 (2d Cir. 2020) ................................................................ 9
`
`United States v. Davis,
` 139 S. Ct. 2319 (2019) .......................................................................... 12
`
`United States v. Grady,
` 746 F.3d 846 (7th Cir. 2014) ................................................................ 23
`
`United States v. Mahoney,
` 247 F.3d 279 (D.C. Cir. 2001) ......................................................... 18, 26
`
`United States v. Scott,
` 958 F. Supp. 761 (D. Conn. 1997) ........................................................ 21
`
`
`
`
`iv
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`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 7 of 37
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`United States v. Taylor,
` 142 S. Ct. 2015 (2022) ........................................................ 12, 14, 18, 25
`
`United States v. Tsarnaev,
` 968 F.3d 24, 99-103 (1st Cir. 2020) ...................................................... 24
`
`United States v. X-Citement Video,
` 513 U.S. 64 (1994) ................................................................................ 18
`
`Voisine v. United States,
` 579 U.S. 686 (2016) .................................................................. 17, 22, 23
`
`Statutes
`18 U.S.C. § 241 ...................................................................................... 4, 9
`
`18 U.S.C. § 248 ...................................................................................... 1, 4
`
`18 U.S.C. § 248(a)(1).................................................................. 2, 8, 17, 20
`
`18 U.S.C. § 248(b)(1)...................................................................... 8, 13, 25
`
`18 U.S.C. § 248(b)(2)........................................................................ 5, 8, 24
`
`18 U.S.C. § 248(d)(1) ............................................................................... 14
`
`18 U.S.C. § 248(e)(2) .................................................................................. 8
`
`18 U.S.C. § 248(e)(3) ................................................................................ 18
`
`18 U.S.C. § 248(e)(4) ................................................................................ 25
`
`18 U.S.C. § 924(c)(2)(B)(i) .......................................................................... 1
`
`
`
`v
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 8 of 37
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`
`18 U.S.C. § 924(c)(3) ................................................................................ 12
`
`18 U.S.C. § 3142(f)(1)(A) ......................................................................... 11
`
`18 U.S.C. § 3143(a)(1) ................................................................ 2, 9, 10, 25
`
`18 U.S.C. § 3143(a)(2) ...................................................................... passim
`
`18 U.S.C. § 3145(c) .................................................................................... 3
`
`18 U.S.C. § 3156(a)(4) .................................................................... 1, 11, 12
`
`28 U.S.C. § 1291 ........................................................................................ 3
`
`28 U.S.C. § 1331 ........................................................................................ 3
`
`42 U.S.C. § 1985(2) .................................................................................. 21
`
`924(c)(3)(B) .............................................................................................. 12
`
`Rules
`Fed. R. App. Proc. 4(b)(1)(A) ..................................................................... 3
`
`Fed. R. App. Proc. 9(a) ............................................................................... 3
`
`Treatises
`Restatement (Second) of Torts § 8A, p. 15 (1965) ................................... 15
`
`
`
`
`
`vi
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 9 of 37
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`INTRODUCTION
`The Supreme Court recently held that volitional acts of force
`
`
`
`which lack a specific intent (purpose or knowledge) of seeking to harm
`
`another are not “crimes of violence” for purposes of sentencing
`
`enhancements under the Armed Career Criminal Act (“ACCA”), 18
`
`U.S.C. § 924(c)(2)(B)(i). Borden v. United States, 141 S. Ct. 1817 (2021).
`
`
`
`This appeal arises from Defendants-Appellants’ immediate
`
`detention pending sentencing, after the District Court determined they
`
`committed “crimes of violence” under 18 U.S.C. § 3156(a)(4) (which is
`
`materially identical to the definition in ACCA). The District Court
`
`based its decision on Defendants’ misdemeanor convictions under the
`
`Freedom of Access to Clinic Entrances Act (“FACE Act”), 18 U.S.C. §
`
`248, given special findings that Defendants engaged in both “physical
`
`obstruction” and “force.” The District Court thus found that Defendants
`
`must be automatically detained before sentencing under 18 U.S.C. §
`
`3143(a)(2).1
`
`
`1 That same court declined to incarcerate co-defendant Jay Smith, who
`pled guilty to actually using the force which these Defendants were
`convicted of aiding and abetting.
`
`
`
`1
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`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 10 of 37
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`
`
`However, a FACE “force” conviction does not categorically require
`
`a specific intent of harming others, because the Act expressly prohibits
`
`using force with a specific intent to “injure[], intimidate[], or interfere
`
`with” another (the latter of which does not require an intent to harm),
`
`because the person is obtaining or providing “reproductive health
`
`services.” 18 U.S.C. § 248(a)(1). Thus, a misdemeanor FACE “force”
`
`violation can occur even where one lacks a specific intent of harming
`
`another, even while the underlying actus reus itself is volitional and
`
`intentional. That is not a “crime of violence” under Borden.
`
`Similarly, Defendants’ misdemeanor convictions for “physical
`
`obstruction” are also not crimes of violence for the reasons discussed
`
`below.
`
`
`
`Accordingly, Defendants should not be detained pending
`
`sentencing under § 3143(a)(2) and should be released under the more
`
`lenient terms of § 3143(a)(1), especially since they were not detained
`
`before trial, and the Government rightly does not argue that they are a
`
`flight risk or danger to others.
`
`
`
`
`
`
`
`2
`
`

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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 11 of 37
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`JURISDICTIONAL STATEMENT
`
`The District Court had federal question jurisdiction under 28
`
`U.S.C. § 1331.
`
`After Defendants-Appellants were convicted of violating the FACE
`
`Act (some on August 29, 2023, others on September 15, 2023), the
`
`District Court ordered that they be immediately detained pursuant to
`
`18 U.S.C. § 3143(a)(2). On August 31, 2023, the District Court denied
`
`Handy’s motion for reconsideration of that decision. Handy timely filed
`
`her notice of appeal to this Court that same day. Dist. Ct. Dkt. 398.
`
`Four additional Defendants-Appellants have also timely filed their
`
`notices of appeal: Herb Geraghty, on September 1, 2023 (No. 23-3146);
`
`William Goodman, on September 1, 2023 (No. 23-3147); Jean Marshall,
`
`on September 17, 2023 (No. 23-3156); and Jonathan Darnel, on
`
`September 20, 2023 (No. 23-3158).
`
`This Court possesses jurisdiction pursuant to 18 U.S.C. § 3145(c)
`
`and 28 U.S.C. § 1291 and Rules 4(b)(1)(A) and 9(a) of the Federal Rules
`
`of Appellate Procedure.
`
`
`
`
`
`
`
`3
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 12 of 37
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`ISSUES PRESENTED
`
`1. Whether Defendants’ misdemeanor convictions for violating
`
`FACE “by force” and “by physical obstruction” are “crime[s]
`
`of violence” requiring automatic detention before sentencing
`
`under 18 U.S.C. § 3143(a)(2).
`
`STATEMENT OF THE CASE
`This case arises from federal criminal charges filed against Ms.
`
`Handy and nine co-defendants after they engaged in a protest at and
`
`inside a Washington, D.C., abortion clinic on October 22, 2020. The
`
`Government indicted the Defendants on March 24, 2022, and then filed
`
`a Superseding Indictment on October 14, 2022. (D.D.C. Dkt. No. 113).
`
`The Superseding Indictment charged each defendant with (1)
`
`conspiracy against rights in violation 18 U.S.C. § 241, a felony; and (2) a
`
`misdemeanor violation of the FACE Act, 18 U.S.C. § 248. Id.
`
`The Superseding Indictment alleged that the purpose of
`
`Defendants’ purported conspiracy was “to create a blockade to stop the
`
`Clinic from providing, and patients from obtaining, reproductive health
`
`services.” (Id. ¶9). Largely tracking FACE’s statutory language, it
`
`further alleged the Defendants, “aiding and abetting one another, did
`
`
`
`4
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 13 of 37
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`by force and physical obstruction, intentionally injure, intimidate, and
`
`interfere with, and attempt to injure, intimidate, and interfere with,
`
`Patient A and the employees of the Clinic, because Patient A was
`
`obtaining, and the Clinic was providing, reproductive health services.”
`
`(Id. ¶38).
`
`The Superseding Indictment does not allege that any of the
`
`Defendants intentionally inflicted physical harm or injury on anyone.
`
`To the contrary, the most that could be marshalled by the Government
`
`in terms of physical injury was the allegation that Defendant Jay Smith
`
`(not one of these Defendants) “forcefully backed into the clinic” and in
`
`the process caused a nurse “to stumble and sprain her ankle.” (Id. ¶23).
`
`(As noted earlier, Smith was not immediately incarcerated after his
`
`conviction. Minute Entry, March 1, 2023.) No Defendant is alleged to
`
`have carried or used any kind of weapon during this protest, and the
`
`proof at trial likewise showed the absence of any weapon being used.2
`
`
`2 The Government also did not charge that “bodily injury” or “death”
`“result[ed]” from Defendants’ actions, and thus tacitly conceded that
`they committed only non-bodily injury violations (i.e., misdemeanors)
`under FACE. See 18 U.S.C. § 248(b)(2).
`
`
`
`
`5
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 14 of 37
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`On August 29, 2023, a jury found Defendant Handy and four co-
`
`defendants (including Defendants-Appellants Herb Geraghty and
`
`William Goodman) guilty on both counts charged in the Superseding
`
`Indictment. On September 15, 2023, a separate jury found three
`
`additional defendants (including Defendants-Appellants Jean Marshall
`
`and Jonathan Darnel) guilty on both counts. At the Government’s
`
`request, the verdict form also contained special interrogatories asking
`
`the jurors to determine whether the FACE violation, if found, was
`
`committed by “force” or “physical obstruction.” The jury returned a
`
`finding of both “force” and “physical obstruction” as to Ms. Handy and
`
`each of the four co-defendants tried. See Minute Entries, D.D.C. Dkt,
`
`August 29, 2023.
`
`Upon the verdict being returned and announced, the District
`
`Court directed that each Defendant, none of whom had been prior to
`
`trial, be taken into custody because they had been convicted of a “crime
`
`of violence.” On August 30, 2023, Appellant Handy filed an emergency
`
`motion for reconsideration of that order (Dkt. No. 387), which the
`
`District Court denied. (Dkt. No. 397). Handy filed a notice of appeal to
`
`this Court from that order the same day. (Dkt. No. 398).
`
`
`
`6
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 15 of 37
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`On September 22, 2023, a motions panel of this Court denied
`
`Handy’s motion for immediate relief pending the outcome of this appeal.
`
`(No. 23-3143, Doc. 2018473.) A concurring opinion (“the Concurrence”)
`
`argued that FACE does not prohibit reckless force. (Id. at 2.)
`
`Respectfully, while the Concurrence focused on the requirement of
`
`general intent in criminal law, it did not address Handy’s argument
`
`regarding FACE’s alternative specific intent requirements.
`
`Four co-Defendants have likewise appealed from their detention
`
`pending sentencing, see Nos. 23-3146, 23-3147, 23-3156, and 23-3158,
`
`which this Court has consolidated.
`
`Defendants continue to be held in custody pending sentencing; no
`
`date has been set for sentencing.
`
`SUMMARY OF ARGUMENT
`Defendants’ misdemeanor FACE “force” convictions are not crimes
`
`
`
`of violence under the requisite categorical approach. The “crimes of
`
`violence” rule is intended “to mark out a narrow ‘category of violent,
`
`active crimes.’” Borden, 141 S.Ct. at 1830 (quoting Johnson v. United
`
`States, 559 U.S. 133, 140 (2010) and Leocal v. Ashcroft, 543 U.S. 1, 11
`
`(2004)). The Supreme Court recently clarified that statutes prohibiting
`
`
`
`7
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`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 16 of 37
`
`acts of force without a specific intent (purpose or knowledge) of harming
`
`others are not crimes of violence under a materially identical definition
`
`in ACCA. Borden, 141 S. Ct. at 1830; id at 1835 (Thomas, J.,
`
`concurring). Here, FACE expressly prohibits acts of force that lack a
`
`specific intent of causing harm to others, because a prohibited act of
`
`“force” can include a specific intent of “injur[ing], intimidat[ing], or
`
`interfer[ing] with” another, the latter of which does not require an
`
`intent to harm. 18 U.S.C. § 248(a)(1) (emphasis added); 18 U.S.C. §
`
`248(e)(2). Thus, the Act’s plain text makes clear that a misdemeanor
`
`FACE “force” conviction does not necessarily require having a specific
`
`intent of harming others. Caselaw likewise confirms this position.
`
`While FACE requires a general intent to engage in an act of
`
`“force,” it does not necessarily require a specific intent of seeking to
`
`harm others, and thus is not a crime of violence under Borden.
`
`
`
`Defendants’ misdemeanor FACE convictions for “physical
`
`obstruction” are also not crimes of violence. While FACE provides lower
`
`penalties for “exclusively nonviolent physical obstruction” under 18
`
`U.S.C. § 248(b)(2), heightened penalties for misdemeanor “physical
`
`obstruction” under § 248(b)(1) do not necessarily encompass only
`
`
`
`8
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`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 17 of 37
`
`“violent” physical obstruction, contrary to the District Court’s
`
`conclusion. Rather, subsection (b)(1) can just as logically include an
`
`offense that involves both “force” (or threat of force) and nonviolent
`
`physical obstruction—i.e., an offense that is not “exclusively nonviolent
`
`physical obstruction” under subsection (b)(2).
`
`
`
`Thus, Defendants’ misdemeanor FACE convictions for “force” and
`
`“physical obstruction” are not “crimes of violence” requiring detention
`
`under 18 U.S.C. § 3143(a)(2), and Defendants should be released
`
`pending sentencing under § 3143(a)(1).
`
`ARGUMENT
`Defendants’ misdemeanor FACE “force” and “physical obstruction”
`
`convictions are not categorically “crime[s] of violence” and thus they are
`
`each entitled to expedited relief from the District Court’s order
`
`detaining them in federal custody prior to sentencing.3
`
`
`3 Notably, Defendants’ felony convictions for conspiracy against federal
`civil rights under 18 U.S.C. § 241 are predicated on a charged
`conspiracy to commit misdemeanor violations of FACE, so whether
`their FACE convictions are crimes of violence resolves this appeal.
`
`Moreover, Defendants intend to appeal on the merits from these
`convictions, including from the theory that they allegedly aided and
`abetted in separate “force” conduct by another defendant, without any
`evidence that they specifically intended that “force” conduct or its
`9
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 18 of 37
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`Under 18 U.S.C. § 3143(a)(2), pre-sentence detention is required
`
`when, inter alia, the defendant has been convicted of a “crime of
`
`violence” as a categorical matter. However, a FACE “force” violation can
`
`occur for even volitional/intentional acts of force in reckless disregard
`
`for others’ safety, which the Supreme Court recently held is not a crime
`
`of violence. See Borden, 141 S. Ct. at 1825; cf. id. at 1844 (Kavanaugh,
`
`J., dissenting) (acknowledging the issue is whether recklessness “with
`
`respect to the consequences of using force” is a crime of violence, not
`
`whether the actus reus—i.e., the underlying act—is
`
`volitional/intentional; the majority agreed it must be).
`
`The District Court’s order concluding otherwise was erroneous
`
`and should be reversed.4 Thus Defendants should be immediately
`
`released from custody under the more lenient terms of 18 U.S.C. §
`
`3143(a)(1), as discussed below, prior to sentencing.
`
`
`results. Rosemond v. United States, 572 U.S. 65, 71, 76 (2014). Further,
`courts have held that conspiracy is not itself a “crime of violence.”
`United States v. Bonner, 826 F. App’x 52, 56 (2d Cir. 2020); Jones v.
`United States, 39 F.4th 523, 526 (8th Cir. 2022).
`
` 4
`
` The same is true of Defendants’ conspiracy convictions, which, as
`noted, is predicated on a conspiracy to violate FACE.
`
`
`
`
`10
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 19 of 37
`
`I.
`
`A “Crime of Violence” is One That “Always Requires” a
`Finding of Actual, Threatened, or Attempted Force.
`Courts must use a categorical (rather than case-by-case) approach
`
`in discerning whether the crime of conviction is a “crime of violence”
`
`requiring automatic detention before sentencing. See 18 U.S.C. §
`
`3143(a)(2) (referencing 18 U.S.C. § 3142(f)(1)(A) (“crime of violence”)).
`
`“Crime of violence” here means “(A) an offense that has as an
`
`element . . . the use, attempted use, or threatened use of physical force
`
`against the person or property of another; [or] (B) any other offense that
`
`is a felony and that, by its nature, involves a substantial risk that
`
`physical force against the person or property of another may be used in
`
`the course of committing the offense.”5 18 U.S.C. § 3156(a)(4).
`
`As noted, precedent teaches that courts must apply a “categorical
`
`approach [under § 3156(a)(4)] . . . that does not expand or contract
`
`based on the factual peculiarities of a particular case.” United States v.
`
`Singleton, 182 F.3d 7, 11 (D.C. Cir. 1999).6
`
`
`5 Section 3156(a)(4)(C), alternatively defining “crime of violence” to
`include “any felony under chapter 77, 109A, 110, or 117,” is not at issue
`here, as FACE and 18 U.S.C. § 241 are located in chapter 13.
`
` 6
`
` Thus, the standard of review is de novo as a pure question of law.
`Khan v. Obama, 655 F.3d 20, 25 (D.C. Cir. 2011).
`11
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`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 20 of 37
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`In particular, the plain terms of 18 U.S.C. § 3156(a)(4)(A), known
`
`as the “elements clause,” inherently “demand” a “categorical inquir[y].”
`
`United States v. Taylor, 142 S. Ct. 2015, 2020 (2022) (interpreting a
`
`materially identical definition of “crime of violence” in 18 U.S.C. §
`
`924(c)(3)). Under that approach, “[t]he only relevant question is
`
`whether the [crime] at issue always requires the government to prove—
`
`beyond a reasonable doubt, as an element of its case—the use,
`
`attempted use, or threatened use of force.” Id.7
`
`Accordingly, a FACE violation (including a FACE “force” violation)
`
`is a “crime of violence” only if it satisfies the “elements clause” as a
`
`categorical matter—that is, if the government must always show an
`
`actual, attempted, or threatened use of physical force against another to
`
`prove a violation of FACE. It does not, as discussed below.
`
`Further, the Supreme Court has generally applied a “modified
`
`categorical rule” when a crime may be committed by alternate elements.
`
`
`7 In Taylor, the Supreme Court also confirmed that the “residual clause”
`of § 924(c)(3)(B) (and thus its materially identical version in §
`3156(a)(4)(B)) (i.e., a felony that “by its nature involves a substantial
`risk that physical force against the person or property of another may
`be used in the course of committing the offense”) is unconstitutionally
`vague under controlling Supreme Court precedent. 142 S. Ct. at 2023
`(citing United States v. Davis, 139 S. Ct. 2319, 2336) (2019)).
`12
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 21 of 37
`
`Mathis v. United States, 579 U.S. 500, 515 (2016). “Under that
`
`approach, a sentencing court looks to a limited class of documents (for
`
`example) the indictment, jury instructions, or plea agreement and
`
`colloquy) to determine the crime, with what elements, a defendant was
`
`convicted of.” Id. at 505-06.
`
`Thus, the question here is whether misdemeanor FACE violations
`
`(including for acts of “force”) categorically require acts of violence. Here,
`
`Defendants were convicted of misdemeanor violations under § 248(b)(1)
`
`for using both force and physical obstruction. But the Supreme Court
`
`has clarified that not all intentional acts of force are “crime[s] of
`
`violence.”
`
`II.
`
`“Reckless” Force—i.e., Intentional Use of Force that Does
`Not Seek to Harm Another—is Not a Crime of Violence.
`“Crime of violence” force has at least two salient characteristics:
`
`(1) it must be “violent”; and (2) it must also involve the specific intent of
`
`harming another.
`
`First, the Supreme Court has clarified that “crime of violence”
`
`“force” 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 (2010) (emphasis in original). The force involved must be “a
`
`
`
`13
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 22 of 37
`
`substantial degree of force,” because the meaning of “crime of violence”
`
`covers only a “narrow category of violent, active crimes.” Borden, 141 S.
`
`Ct. at 1830 (emphasis added, internal quotes omitted). Thus, the
`
`Supreme Court recently found that attempted Hobbs Act robbery is not
`
`a crime of violence because “there will be cases appropriately reached by
`
`a charge of attempted robbery, where the actor does not actually harm
`
`anyone or threaten harm.” Taylor, 142 S. Ct. at 2020.
`
`Here, Defendants and the Government agree that the level of
`
`“force” required by FACE must be “capable of causing physical pain or
`
`injury to another.” (See No. 23-3143, Doc. 2016523, Br. at 15.)8
`
`
`8 Thus, Defendants cannot accept the Concurrence’s invitation to argue
`that FACE “force” could “encompass even the slightest offensive
`touching” (Cir. Or. at 2), which, among other issues, would present
`serious First Amendment problems. See 18 U.S.C. § 248(d)(1) (requiring
`that FACE’s terms be construed in accord with the First Amendment);
`see also New York v. Griepp, 991 F.3d 81, 143 (2d Cir. 2021) (Livingston,
`C.J., concurring in part) (observing that a “de minimis” contact
`standard in FACE would likely violate the First Amendment), reh’g
`granted and opinion vacated sub nom. People v. Griepp, 997 F.3d 1258
`(2d Cir. 2021), and on reh’g sub nom. New York by James v. Griepp, 11
`F.4th 174 (2d Cir. 2021). Moreover, the natural reading of “force” in
`FACE is substantial force, as a “slightest offensive touching” standard
`would be inconsistent with the first two means in FACE’s specific intent
`element, requiring intent to “injure” or “intimidate.”
`14
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 23 of 37
`
`However, “crime of violence” “force” must also involve “a
`
`purposeful or knowing mental state—a deliberate choice of wreaking
`
`harm on another, rather than mere indifference to risk.” Borden, 141 S.
`
`Ct. at 1830 (emphasis added) (holding that both violent force and
`
`specific intent to harm are required).9 Thus, the Supreme Court recently
`
`held that a volitional act of force that is merely reckless with regard to
`
`others’ safety is not a crime of violence. Id. at 1825-1834 (plurality); id.
`
`at 1834-1837 (Thomas, J., concurring). While the plurality and Justice
`
`Thomas disagreed about the precise reason a specific intent to harm
`
`another is required (the plurality relied on the requirement that one’s
`
`force must be “against . . . another,” while Justice Thomas pointed to
`
`the phrase “use of physical force” as inherently requiring an intent to
`
`harm), both agreed on the resulting principle: an intentional act of force
`
`is a crime of violence only if it involves a specific intent to harm or injure
`
`another. See id. at 1830 (plurality) (requiring “deliberate choice of
`
`wreaking harm on another”); id. at 1835 (Thomas, J., concurring)
`
`(requiring “intentional acts designed to cause harm”).
`
`
`9 By “specific intent,” Defendants mean both “purpose” and “knowledge”
`consistent with the traditional understanding of “intent.” See
`Restatement (Second) of Torts § 8A, p. 15 (1965).
`15
`
`
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 24 of 37
`
`Accordingly, in Borden the Supreme Court held that a conviction
`
`for reckless aggravated assault is not a crime of violence. Id. at 1822,
`
`1825. The plurality pointed to other real-world cases of reckless crimes
`
`involving intentional acts of force—such as a shoplifter intentionally
`
`“jump[ing] off a mall’s second floor balcony while fleeing security”—but
`
`having “only a reckless mens rea” as to possible resulting injury to
`
`another—such as the shoplifter “land[ing] on a customer” and seriously
`
`injuring her. Id. at 1831 (plurality) (citing Craver v. State, 2015 WL
`
`3918057, at *2 (Tex. App., June 25, 2015)). Put simply, “recklessness . . .
`
`involve[s] insufficient concern with a risk of injury,” without
`
`“consciously desir[ing]” or deliberately acting “with full awareness of
`
`consequent harm.” Id. at 1823-34 (plurality). But only acts of force that
`
`purposely or knowingly seek to harm another are crimes of violence,
`
`according to Borden. Id. at 1825 (plurality); id. at 1835 (Thomas, J.,
`
`concurring).
`
`Thus, if FACE prohibits “force” with a specific intent other than
`
`causing harm to another, a misdemeanor FACE “force” conviction
`
`cannot be a “crime of violence.”
`
`
`
`
`
`16
`
`

`

`USCA Case #23-3143 Document #2020079 Filed: 10/02/2023 Page 25 of 37
`
`
`
`III. A FACE “Force” Conviction Can Include a Specific Intent to
`“Interfere With” (Rather Than to “Injure”) Another, and
`Thus is Not a Crime of Violence.
`The FACE Act expressly prohibits acts of “force” with a specific
`
`intent to “interfere with” another, in the alternative to force with a
`
`specific intent to “injure” another. Thus a FAC

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