No. 99-97
In the Supreme Court of the United States
DEREK DUANE PAGE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
SANGITA K. RAO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
The interstate domestic violence statute, 18 U.S.C. 2261(a)(2), subjects
to criminal punishment "[a] person who causes a spouse or intimate
partner to cross a State line * * * by force, coercion, duress, or fraud
and, in the course * * * of that conduct, intentionally commits a crime
of violence and thereby causes bodily injury to the person's spouse or intimate
partner." The questions presented are:
1. Whether "bodily injury" includes the aggravation of pre-existing
injuries during interstate travel.
2. Whether threats of violence constitute a "crime of violence."
3. Whether violence that occurs before interstate travel begins that enables
the defendant to force his victim to cross state lines is "in the course
* * * of that conduct."
4. Whether Section 2261(a)(2) is constitutional under the Commerce Clause.
In the Supreme Court of the United States
No. 99-97
DEREK DUANE PAGE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The order of the equally divided en banc court of appeals and the concurrence
and dissents (Pet. App. A1-A52) are reported at 167 F.3d 325. The now-vacated
opinion of the panel (Pet. App. D8-D49) is reported at 136 F.3d 481. The
opinion of the district court (Pet. App. F1-F9) is unreported.
JURISDICTION
The judgment of the en banc court of appeals was entered on February 23,
1999. The petition for a writ of certiorari was filed on May 21, 1999. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Southern
District of Ohio, petitioner was convicted on one count of violating the
interstate domestic violence statute, 18 U.S.C. 2261(a)(2). Pet. App. A8.
Petitioner was sentenced to 57 months' imprisonment. Id. at D12. An equally
divided en banc court of appeals affirmed. Id. at A1-A52.
1. Carla Scrivens formed a relationship with petitioner and moved into his
condominium, in Columbus, Ohio. Their relationship, however, quickly deteriorated.
Petitioner demanded that Scrivens stop associating with her friends and
family, controlled what she could or could not wear or eat, and once sprayed
her with mace and shocked her with a stun gun. After less than three months
together, Scrivens told petitioner that she was moving out and ending her
relationship with petitioner. Pet. App. A6-A7.
When Scrivens attempted to retrieve her belongings from petitioner's condominium,
however, petitioner reacted with violence. He pushed her down, dragged her
away from the door, and tried to spray her with mace. He then attacked her
with a claw hammer, a pipe wrench, his fists, and a stun gun. During the
beating, Scrivens fell into unconsciousness several times, and her feet
and legs became so battered that she could not walk. After the beating,
petitioner carried Scrivens to his car, placed her inside of it, and threatened
her with his stun gun. Petitioner then drove around for approximately four
hours, crossing state lines into Pennsylvania. On the way, petitioner passed
several local hospitals and ignored Scrivens' pleas that he stop so that
she could obtain medical treatment. During that period, Scrivens continued
to bleed, and the swelling from her injuries increased. Petitioner eventually
left Scrivens at the emergency room of a hospital in Washington, Pennsylvania,
where Scrivens reported the attack and obtained treatment for her numerous
injuries. Pet. App. A7-A8.
Petitioner was indicted on one count of kidnaping, in violation of 18 U.S.C.
1201, and one count of interstate domestic violence, in violation of 18
U.S.C. 2261(a)(2). Section 2261(a)(2) provides that "[a] person who
causes a spouse or intimate partner to cross a State line * * * by force,
coercion, duress, or fraud and, in the course or as a result of that conduct,
intentionally commits a crime of violence and thereby causes bodily injury
to the person's spouse or intimate partner, shall be punished" under
the statute. 18 U.S.C. 2261(a)(2).
Petitioner's first trial ended in a hung jury. Following a second jury trial,
petitioner was convicted on the Section 2261 count, but acquitted of kidnaping.
Pet. App. A8. Petitioner moved for a judgment of acquittal on the Section
2261 count, arguing that Section 2261(a)(2) does not reach violence that
occurs before interstate travel begins. He also argued that a contrary reading
of the statute would take it outside Congress's power under the Commerce
Clause. Id. at F4. The district court denied the motion. Id. at F1-F9. The
district court interpreted the statute's prohibition on violence occurring
"in the course or as a result of that conduct" to include the
beating in the condominium. Id. at F4-F8. The district court further held
that interpreting the statute to reach such cases "in no way contravenes
the limits of Congress' regulatory authority under the commerce clause."
Id. at F9.
2. A panel of the court of appeals reversed. Pet. App. D8-D49. The panel
held that petitioner could not be convicted under Section 2261(a)(2) for
violence that occurred before commencement of interstate travel. Id. at
D11. The panel concluded that petitioner's threats of violence that resulted
in the aggravation of Scrivens' preexisting injuries fell within the ambit
of the statute. The panel remanded for a new trial, however, because it
concluded that the jury instructions allowed the jury to convict based on
violence that had occurred before petitioner and Scrivens began traveling
in the car. Id. at D19-D22, D27.
Judge Moore filed an opinion concurring in part and dissenting in part.
Pet. App. D36-D49. Judge Moore agreed that petitioner could be convicted
based on the aggravation of Scrivener's preexisting injuries that occurred
during interstate travel. Id. at D44-D49. Judge Moore dissented, however,
based on her view that petitioner could also be convicted on the basis of
the violence that occurred in his condominium. Id. at D37-D44.
3. On rehearing en banc, the court of appeals affirmed petitioner's conviction
and sentence by an equally divided vote. Pet. App. A1-A52. Judge Moore filed
an opinion concurring in the affirmance, in which seven other members of
the court joined. Id. at A2, A4-A35. She concluded that the "in the
course . . . of that conduct" requirement in Section 2261(a)(2) can
be satisfied by any violent conduct involved in causing a spouse or intimate
partner to cross a state line, not just violent conduct that occurs during
interstate travel. Id. at A9. Since the beating that occurred in petitioner's
condominium "enabled [petitioner] to force Scrivens to travel across
state lines," Judge Moore concluded, it "clearly occurred 'in
the course' of [petitioner] forcibly 'causing' Scrivens 'to cross a State
line.'" Id. at A10 (quoting 18 U.S.C. 2261(a)(2)).
Judge Moore concluded that a violation of the statute also occurs when a
defendant's threat of violence aggravates injuries that have occurred before
interstate travel began. In particular she concluded that "threats"
can be a "crime of violence" within the meaning of the statute,
and that the "aggravation of preexisting injuries" can constitute
"bodily injury" under the statute. Pet. App. A20-A21. Judge Moore
concluded that the evidence was sufficient to convict petitioner under that
alternate theory, since petitioner's threats "prevented Scrivens from
obtaining medical attention and thereby caused her to suffer further injury."
Id. at A24.
Judge Moore also concluded that Section 2261 is a valid exercise of Congress's
powers under the Commerce Clause. Judge Moore noted that this Court has
identified three forms of legislation that Congress may enact under the
Commerce Clause: (1) legislation that regulates the channels of interstate
commerce, (2) legislation that regulates the instrumentalities of interstate
commerce, and (3) legislation that regulates intrastate activity that has
a substantial effect on interstate commerce. Pet. App. A29. Judge Moore
concluded that "[b]ecause the triggering factor of § 2261(a)(2)
is the movement of the victim across state lines," the statute "is
a valid exercise of Congress's power to regulate the 'use of the channels
of interstate commerce.'" Ibid. Judge Moore rejected petitioner's argument
that, under United States v. Lopez, 514 U.S. 549 (1995), a criminal statute
may validly regulate non-economic activity under the Commerce Clause only
if the activity has a "substantial effect" on commerce. Judge
Moore concluded that Lopez did not extend the "substantial effects"
test to Commerce Clause legislation that regulates the channels of interstate
commerce. Id. at A31-A32.
Judge Kennedy, joined by six other judges, dissented. Pet. App. A2, A36-A43.
Judge Kennedy concluded that the requirement that violence occur "in
the course . . . of that conduct," could be satisfied by pre-travel
violence, but only if the purpose of the violence is to cause interstate
travel. Id. at A37. Because Judge Kennedy believed that the evidence was
insufficient to show that petitioner had beaten Scrivens in order to cause
her to cross state lines, Judge Kennedy would not have sustained petitioner's
conviction based on his pre-travel conduct. Id. at A39-A41.
Judge Kennedy agreed with Judge Moore that the evidence that Scrivens suffered
further injuries during interstate travel would support a verdict against
petitioner. Pet. App. A42. In her view, however, that theory had not been
submitted to the jury. She therefore would have remanded the case for a
new trial. Ibid. Judge Kennedy also agreed with Judge Moore that the statute
is constitutional under the Commerce Clause. Id. at A36.
Judge Ryan filed a separate dissenting opinion. Pet. App. A44-A45. Judge
Ryan concluded that petitioner's conduct was not encompassed by Section
2261(a)(2), because the violence occurred before petitioner forced the victim
to cross a state line. Id. at A44. In addition, he would not have affirmed
petitioner's conviction based on the aggravation of Scrivens' preexisting
injuries because, in his view, that theory of culpability was not presented
to the jury. Id. at A45. He concluded, however, that the statute is "plainly
constitutional." Ibid.
Judge Wellford, who joined in Judge Kennedy's opinion, Pet. App. A2 n.2,
also filed a separate dissenting opinion. Id. at A46-A52. In Judge Wellford's
view, the statute only covers cases where the defendant forces a spouse
or intimate partner to cross state lines, and injury or abuse occurs during
the course of or as a result of interstate travel. Id. at A47. In addition,
Judge Wellford concluded that "threats" do not constitute a "crime
of violence" within the meaning of the statute, and that "aggravation
of injuries" is not a "bodily injury" within the meaning
of the statute. Id. at A46. Judge Wellford also expressed "skepticism"
about the statute's constitutionality. Id. at A50-A52.
ARGUMENT
1. Petitioner contends (Pet. 6-16) that the Court should grant review to
decide three questions relating to the meaning of Section 2261(a)(2): (1)
whether "bodily injury" includes the aggravation of preexisting
injuries; (2) whether threats of violence constitute a "crime of violence";
and (3) whether "in the course or as a result of that conduct"
refers only to violence that occurs during interstate travel. Review of
those issues is unwarranted for three reasons.
First, the court of appeals did not authoritatively resolve any of those
three questions. The panel opinion has been vacated, and the equally divided
decision of the en banc court has no precedential force. Cf. Neil v. Biggers,
409 U.S. 188, 192 (1972) (decision of equally divided Supreme Court is not
"entitled to precedential weight"). Since none of the opinions
issued in this case will have binding effect even within the Sixth Circuit,
this case is inappropriate for further review by this Court.
Second, besides the court below, only one other court of appeals has even
addressed the issues raised by petitioner, and that decision supports petitioner's
conviction here. In United States v. Helem, 186 F.3d 449, 455 (1999), the
Fourth Circuit held that "physical violence that occurs before interstate
travel begins can satisfy the 'in the course or as a result of that conduct'
requirement of 18 U.S.C. § 2261(a)(2)." The Fourth Circuit also
appeared to accept Judge Moore's conclusion that the statute is violated
when a defendant forces a victim to travel across state lines under a threat
of violence and thereby exacerbates the victim's preexisting injuries. Id.
at 454-455. The Fourth Circuit did not resolve that issue, however, because
that theory was not presented to the jury. Id. at 455. Because only one
other court of appeals has addressed the issues raised by petitioner, because
that court resolved only one of the questions, and because it resolved that
question adversely to petitioner, review of the statutory questions raised
by petitioner would be premature.
Third, petitioner's positions on the merits of the statutory issues are
incorrect. Petitioner contends (Pet. 8) that threats of violence cannot
constitute a "crime of violence" under the statute. Under the
terms of the statute, however, a "crime of violence" includes
"an offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another." 18
U.S.C. 16(a). Here, petitioner "threatened to use a stun gun against
Scrivens in order to obtain her cooperation in being transported across
state lines. * * * Moreover, while they traveled interstate, [petitioner]
threatened to push Scrivens out of the car and leave her on the side of
the road where no one would ever find her." Pet. App. A21-A22. As Judge
Moore concluded, such threats of physical force constitute a "crime
of violence" under Section 2261(a)(2).
Petitioner also errs in contending (Pet. 7-8) that the aggravation of preexisting
injuries cannot constitute "bodily injury" within the meaning
of Section 2261(a)(2). The statute defines "bodily injury" as
"any act, except one done in self-defense, that results in physical
injury or sexual abuse." 18 U.S.C. 2266. That definition does not draw
any distinction between the infliction of physical injuries by an initial
beating and the inflicting of physical injuries by the denial of needed
medical care resulting in aggravated injury. In this case, the evidence
demonstrated that petitioner's conduct caused Scrivens to lose blood and
to experience great pain. Pet. App. A26. As Judge Moore stated (id. at A28),
"[b]y any definition, the painful swelling and loss of blood that Scrivens
suffered as a result of being unable to seek prompt medical attention constituted
'bodily injury.'" Id. at A28.
Petitioner similarly errs in contending (Pet. 8-9) that violence that occurs
before interstate travel begins cannot satisfy the "in the course or
as a result of that conduct" requirement in Section 2261(a)(2). In
relevant part, the statute subjects to criminal punishment "[a] person
who causes a spouse or intimate partner to cross a State line * * * by force,
coercion, duress, or fraud and, in the course * * * of that conduct, intentionally
commits a crime of violence and thereby causes bodily injury to the person's
spouse or intimate partner." 18 U.S.C. 2261(a)(2). As Judge Moore explained
(Pet. App. A9-A10), the words "that conduct" are most naturally
read to refer to any conduct that "causes a spouse or intimate partner
to cross a State line," and violence that occurs before interstate
travel begins can be instrumental in causing that result. In particular,
when, as here, pre-travel conduct enables the defendant to force his victim
across state lines, the "in the course * * * of that conduct"
requirement is satisfied.
The difference between the language of Section 2261(a)(2) and the language
in neighboring provisions confirms the conclusion that Section 2261(a)(2)
can encompass pre-travel violence. Sections 2261(a)(1) (interstate domestic
violence), 2261A (interstate stalking), and 2262(a)(1)(B) (interstate violation
of a protective order), expressly limit coverage to violence or harassment
that occurs either "subsequent[]" to interstate travel, or "in
the course or as a result of such travel." 18 U.S.C. 2261(a)(1), 2261A,
2262(a)(1)(B) (Supp. III 1997). In contrast, Sections 2261(a)(2) and 2262(a)(2)
specifically address violations that involve forcing another person to travel,
and both of those Sections refer to "that conduct." 18 U.S.C.
2261(a)(2), 2262(a)(2). As both Judge Moore (Pet. App. A14-A15) and the
Fourth Circuit concluded (Helem, 186 F.3d at 454-455), that difference in
statutory language shows that Congress did not intend to limit the reach
of the latter statutes to conduct that occurs during or after interstate
travel.
In sum, petitioner's statutory arguments were not authoritatively resolved
by the court below, have been considered by only one other court of appeals
which rejected them in pertinent part, and are without merit. In the absence
of a circuit conflict, petitioner's statutory arguments do not warrant review.
2. Petitioner also seeks (Pet. 16-24) review of the constitutionality of
Section 2261(a)(2) under the Commerce Clause. That issue does not warrant
review.
a. Contrary to petitioner's contention (Pet. 20), United States v. Lopez,
514 U.S. 549 (1995), does not cast doubt on the constitutionality of Section
2261. In Lopez, the Court struck down the Gun-Free School Zones Act of 1990,
18 U.S.C. 922(q), which made it a federal crime to possess a firearm within
1000 feet of a school. Lopez, 514 U.S. at 551. The Lopez Court identified
three broad categories of activity that Congress may regulate under its
commerce power: (1) the channels of interstate commerce; (2) the instrumentalities
of interstate commerce, or persons or things in interstate commerce, even
though the threat may come from intrastate activities; and (3) intrastate
activities that substantially affect interstate commerce. Id. at 559. Since
Section 922(q) did not regulate the channels or instrumentalities of interstate
commerce, the Lopez Court considered whether the statute could be upheld
under the third category as a regulation of an activity that substantially
affects interstate commerce. The Court concluded that Section 922(q) exceeded
Congress's power because it regulated purely intrastate, non-economic activity-possession
of a firearm near a school-and did not contain a jurisdictional element
requiring a nexus to interstate commerce in each case. Id. at 561-562.
Unlike the statute at issue in Lopez, Section 2261(a)(2) regulates interstate
activity. An element of the Section 2261(a)(2) offense is the transportation
of the victim across state lines. Accordingly, Section 2261(a)(2) "falls
into the first [Lopez] category" and "is a valid exercise of Congress's
power to regulate the 'use of the channels of interstate commerce.'"
Pet. App. A29; see United States v. Bailey, 112 F.3d 758, 766 (4th Cir.)
(rejecting Commerce Clause challenge to Section 2261(a)(2) because "[t]he
statute requires the crossing of a state line, thus placing the transaction
squarely in interstate commerce"), cert. denied, 118 S. Ct. 240 (1997);
United States v. Gluzman, 953 F. Supp. 84, 89 (S.D.N.Y. 1997) (rejecting
constitutional challenge to Section 2261(a)(1)), because "[u]nlike
the statute at issue in Lopez, section 2261 does not regulate purely local
activity, but, instead, is an exercise of Congress' power under the first
category of cases articulated by the Lopez Court-the authority to regulate
the use of channels of commerce"), aff'd, 154 F.3d 49, 50 (2d Cir.
1998) (adopting the holding and analysis of the district court's opinion),
cert. denied, 119 S. Ct. 1257 (1999).
Petitioner contends (Pet. 21-22) that, after Lopez, a criminal statute that
regulates non-economic activity must substantially affect interstate commerce
in order to be a valid exercise of Congress's commerce power, even where
that statute contains a jurisdictional element requiring interstate travel.
Petitioner's argument is based on a misreading of Lopez. The Lopez Court
found a limitation on congressional power over intrastate activities that
are regulated because of their effects on interstate commerce. The Court
did not hold that the "substantial effects" test extends to statutes
regulating the channels or instrumentalities of interstate commerce. See
Pet. App. A31-A32; Gluzman, 953 F. Supp. at 89.
No such reading of Lopez could be adopted consistent with an unbroken line
of this Court's decisions upholding the plenary authority of Congress to
regulate the movement of goods or persons across state lines. "[T]he
authority of Congress to keep the channels of interstate commerce free from
immoral and injurious uses has been frequently sustained, and is no longer
open to question." Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 256 (1964) (quoting Caminetti v. United States, 242 U.S. 470,
491 (1917)); see United States v. Orito, 413 U.S. 139, 144 (1973). Thus,
under the Commerce Clause, Congress has the power to regulate any activity-whether
commercial or not-that takes places across state lines. See, e.g., Scarborough
v. United States, 431 U.S. 563, 566-567 (1977) (upholding regulation of
interstate transportation of firearms for private use); Orito, 413 U.S.
at 144 (upholding regulation of interstate transportation of obscene materials
for private use); Cleveland v. United States, 329 U.S. 14 (1946) (rejecting
Commerce Clause challenge to the Mann Act, ch. 395, 36 Stat. 825, which
forbade transportation in interstate commerce of any woman or girl for the
purpose of prostitution, debauchery, or other immoral purpose); United States
v. Hill, 248 U.S. 420, 423-424 (1919) (upholding regulation of interstate
travel with one quart of liquor meant for personal consumption); Caminetti,
242 U.S. at 491-492 (upholding statute (the Mann Act) criminalizing the
defendant's transportation of a woman across state lines to be his mistress).
Indeed, in United States v. Robertson, 514 U.S. 669 (1995) (per curium),
a post-Lopez decision, the Court confirmed that "[t]he 'affecting commerce'
test was developed * * * to define the extent of Congress' power over purely
intrastate commercial activities that nonetheless have substantial interstate
effects" and does not apply when the regulated activity itself crosses
state lines. Id. at 671.
b. Petitioner contends (Pet. 17-21) that the views of the judges in this
case (Pet. App. A29 (opinion of Moore, J.), A36 (opinion of Kennedy, J.,
dissenting), A45 (opinion of Ryan, J., dissenting)), and of the Second Circuit
in Gluzman, 154 F.3d at 50, that Section 2261 is a valid exercise of Congress's
power under the Commerce Clause conflicts with the Fourth Circuit's decision
in Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820 (1999) (en banc),
cert. granted sub nom. United States v. Morrison, No. 99-5, and Brzonkala
v. Morrison, No. 99-29 (Sept. 28, 1999). There is, however, no such conflict.
In Brzonkala, the Fourth Circuit held unconstitutional Title III of the
Violence Against Women Act of 1994, 42 U.S.C. 13981, which creates a private
cause of action against an individual who commits a gender-based crime of
violence. Brzonkala does not involve the constitutionality of Section 2261,
and the decision in that case does not call its constitutionality into question.
Section 2261 and Section 13981 raise significantly different issues under
the Commerce Clause. Section 2261 expressly regulates "an interstate
activity, namely the travel across state lines to commit domestic violence."
Gluzman, 953 F. Supp. at 89 n.3. Section 13981 is not so limited. Nor does
Section 13981 contain a jurisdictional element requiring a nexus to interstate
commerce in an individual case. The validity of Section 13981 under the
Commerce Clause thus depends on whether Congress permissibly determined
that the provision regulates an activity that substantially affects interstate
commerce. Indeed, in United States v. Bailey, supra, the Fourth Circuit
explicitly held that Section 2261(a)(2) is constitutional under the Commerce
Clause, reasoning that "[t]he statute requires the crossing of a state
line, thus placing the transaction squarely in interstate commerce."
112 F.3d at 766. The same court's en banc decision in Brzonkala did not
disturb that ruling. Accordingly, there is no circuit conflict on the constitutionality
of Section 2261. For the same reason, there is no reason to hold the present
case pending the outcome of the decisions in United States v. Morrison,
No. 99-5, and Brzonkala v. Morrison, No. 99-29.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
SANGITA K. RAO
Attorney
OCTOBER 1999