United States v. Derek Duane Page

136 F.3d 481, 1998 U.S. App. LEXIS 1940, 1998 WL 54382

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 12, 1998
• Docket: 96-4083
• Status: Published

Opinions

MERRITT, J., delivered the opinion of the court. WELLFORD, J. (pp. 488-490), delivered a separate concurring opinion. MOORE, J. (pp. 490^495), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MERRITT, Circuit Judge.

The Violence Against Women Act, adopted in 1994, has two criminal provisions', one of which forbids' interstate travel for the purpose of committing domestic violence, and the other of which forbids domestic violence during or as a result of such interstate travel. In the direct criminal appeal now before us, the defendant, Derek Page — before traveling interstate — -brutally beat and injured his live-in girlfriend. He injured her in Columbus, Ohio, and then drove her to Washington, Pennsylvania, where he left her for treatment at a hospital. Although the beating occurred entirely in Page’s home in Ohio, the prosecution presented evidence that the victim’s injuries worsened during the trip to Pennsylvania. This appeal presents two questions regarding the scope of the new statute: first, whether it criminalizes domestic violence that occurs before interstate travel begins; • and second, whether it criminalizes intentional violent conduct during interstate travel that results in the aggravation of injuries inflicted earlier.

The precise language of the statute is important. Section 2261(a)(1) criminalizes the actions of a “person who travels across a State line ... with the intent to injure” a “spouse or intimate partner” and who does in fact injure that person “in the course of-or as a result of such travel,” and (a)(2) criminalizes the conduct of one who “commits a crime of violence and thereby causes bodily injury to the person’s spouse or intimate partner,” “in the course or as a result of’ causing him or her “to cross a State line ... by force, coercion, duress, or fraud.”¹ Following the longstanding “canon of strict construction of criminal statutes, or rule of lenity, [that] ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered,” United States v. Lanier, — U.S.-,-, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (citing numerous eases), we conclude that this statute does not criminalize domestic violence that occurs prior to interstate travel. Rather, the statute only covers domestic violence occurring “in the course or as a result of’ such travel. Interpreted this way, the statute criminalizes the aggravation of injuries inflicted before interstate travel only so long as the worsening of the injuries was caused by intentional violent conduct during interstate travel. Because the jury was not instructed on the proper interpretation of the statute, we reverse the defendant’s conviction and remand for retrial.

I.

On November 2, 1995, a grand jury returned a two-count indictment charging Derek Page with kidnapping and interstate domestic violence. His first trial ended in a hung jury. At Page’s second trial, the jury acquitted him of kidnapping but found him guilty of interstate domestic violence, in violation of 18 U.S.C. § 2261(a)(2). The District Court denied Page’s motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(e) and sentenced him to fifty-seven months in prison. It is this ruling that Page appeals.

The evidence at trial showed that on the evening of July 24, 1995, Page’s live-in girlfriend, Carla Scrivens, visited his condominium in Columbus, Ohio, where a physical confrontation ensued. The prosecution presented evidence that Page sprayed Scrivens with pepper spray and' beat her over the course of several hours with his fists, a claw hammer, and a pipe wrench. Approximately two hours after the beating had ceased, Page carried Scrivens to his car and drove her to Washington, Pennsylvania, where he left her in the emergency room of a hospital. The prosecution adduced evidence that Page forced Scrivens to take this journey by threatening her with further violence and with the use of a stun gun. There was also evidence that during the drive to Pennsylvania, Page made additional threats and that Scrivens’s injuries worsened through bleeding and swelling.

II.

Page was convicted under § 2261(a)(2), the scope of which has not been addressed by this or any other appellate court. Conviction under § 2261(a)(2) requires the prosecution to prove that the defendant: (1) caused his or her spouse or intimate partner to cross a state line (2) by force, coercion, duress, or fraud, and (3) in the course or as a result of that conduct, (4) intentionally committed a crime of violence, (5) thereby causing bodily injury to the spouse or intimate partner. On appeal, Page appears to concede that he used coercion, force, or duress to cause Scrivens to travel interstate and that he caused bodily injury to Scrivens during a physical altercation before travel began.

Page’s appeal rests on the timing of the violence that caused Scrivens’s injuries. Referring to the precise language of § 2261(a)(2), he claims that the prosecution failed to establish that the act of violence that caused bodily injury to Scrivens occurred “in the course or as a result of that conduct.” He argues that the term “that conduct” refers to the act of traveling interstate. Accordingly, he contends that the words “crime of violence [causing] bodily injury” require the prosecution to prove that a separate act of violence occurred during or as a result of interstate travel. Page maintains that the violent conduct which caused Seri-vens’s bodily injuries ceased before he drove her to Pennsylvania and that no act of violence causing bodily injury to' Serivens occurred during or as a result of the travel. As such, he argues that the statute does not apply.

The prosecution argues that “that conduct” looks both at the acts constituting the interstate travel and at the “force, coercion, duress, or fraud” used in causing the travel. The prosecution relies on a “single episode” theory of the crime, arguing that it makes no difference exactly when the injury occurred. It contends that the term “that conduct” includes Page’s beating of Serivens because this beating “was instrumental in causing the victim’s interstate transportation.” In other words, the prosecution maintains that the same course of violent conduct that caused Serivens’s bodily injuries also caused her to cross the state line. Under the prosecution’s reading, § 2261(a)(2) would reach any instance of domestic violence occurring before interstate travel, provided that there is some link between the violence causing the victim’s bodily injury and the force, coercion, duress, or fraud used in causing the victim to cross the state line.

The District Court adopted this reading of the statute in denying Page’s motion for a judgment of acquittal, stating that “there is no evidence whatsoever that Congress somehow sought to exclude from the Act’s protection domestic violence victims who had the misfortune of being beaten before, as opposed to during or after, their transportation across state lines.” Dist. Ct. at 5-6, J.A. at 210-11. The court concluded that although the statute “require[s] there to be a nexus or relationship between the forced interstate transportation and the infliction of bodily injury,” such a connection had been established. Dist. Ct. at 6, J.A. at 211. The court held that the prosecution had presented evidence sufficient to allow a reasonable jury to “conclude that the attack on Ms. Serivens in Columbus, Ohio, and her subsequent transportation to Washington, Pennsylvania, was all part of a single episode or series of events,” thus establishing the requisite connection. Id.

Section 2261(a) is the product of compromise among contending forces arguing for a broad federal statute outlawing any domestic violence against women that affects commerce and those arguing against the federalization of state- domestic relations matters. It is not a model of clarity. Nevertheless, the provision’s language fails to support the “single episode” or “continuing assault” theory adopted by the District Court and urged by the prosecution on appeal. Section 2261(a)(1) appears to criminalize the conduct of a person who travels across a state line for the purpose of committing an act of violence on a spouse or partner, and who thereafter commits such an act. Section 2261(a)(2), on the other hand, targets violence that occurs during, or as a result of, interstate travel. The statute’s language simply does not appear to reach violent acts that occur before interstate travel begins. We must enforce the statute according to the words that Congress actually adopted and not according to our own view of what might be a better or more comprehensive statutory policy on domestic violence against women.

The provision’s legislative history precludes the “single episode” theory. The statute, as originally proposed in 1990, was much broader than the present version.² It proposed to criminalize any domestic violence “in interstate commerce.” See S.Rep. No. 101-545, at 15 (1990). Concerned about encroaching upon the traditional jurisdiction of the states over domestic relations matters, and in light of the federal courts’ traditional reluctance to federalize this field, see Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 2214-15, 119 L.Ed.2d 468 (1992) (reaffirming the longstanding domestic relations exception to diversity jurisdiction, which divests the federal courts of authority to issue divorce, alimony, and child custody decrees), Congress rejected the broad proposal and chose to limit the scope of the statute to “bodily injury” that occurs during (“in the course [of]”) or after (“as a result of’) crossing a state line. This congressional action removed from federal criminal jurisdiction domestic violence “in interstate commerce” and limited the reach of the provision to violence “in the course or as a result of-’ interstate travel. This narrowing means that domestic violence occurring before such travel commences — violence that may affect interstate commerce or cause later travel— must be excluded. The prosecution’s “single episode” argument is an attempt to create by judicial interpretation the proposed statute that Congress declined to adopt.

The Senate Report accompanying the 1993 version of the provision furnishes further support for Page’s interpretation. This proposal employed much of the same language— and the same use of the term “that conduct” — as the final version.³ The accompanying Senate Report states that § 2261(a)(2) “covers eases where the defendant has forced a spouse or intimate partner to cross State lines, and injury or abuse occurs during the course of or as a result of this travel.” S.Rep. No. 103-138, at 61 (1993) (emphasis added). This report also states that the provision “creates a Federal remedy for interstate crimes of abuse including crimes committed against spouses or intimate partners during interstate travel. ...” Id. at 43 (emphasis added). This language demonstrates that Congress intended the term “that, conduct” to refer to interstate travel and not to conduct occurring before such travel. '

The Senate Report’s statement that “that conduct” means interstate travel, combined with the substantial narrowing of the statute between 1990 and 1994, demonstrates that Congress intended the statute to require discrete acts of violence, occurring during or as a result of interstate travel, resulting in bodily injury. Congress did not intend for the prosecution to be able to establish violation of § 2261(a)(2) simply by showing a loose connection between interstate travel and violent acts, occurring before interstate travel, that actually caused the victim’s physical injuries. Violence occurring before interstate travel cannot provide a basis for conviction under the statute. To hold otherwise would restore the broad reach of the proposal rejected by Congress in favor of the more limited provision ultimately enacted.

The prosecution contends that its interpretation of the statute is the only sensible one, asserting that Page’s construction would so narrow the statute that it would only cover the defendant who “continue[d] to drive with one hand and to hit his victim with the other while they were crossing the state lines.” Obviously it is wrong to suggest that the statute only criminalizes acts of violence occurring at the moment a state line is crossed. Rather, it reaches any crime of violence, resulting in bodily injury, that occurs during or as a result of interstate travel induced by force, coercion, duress, or fraud.

III.

The prosecution’s second argument is better. It argues in the alternative that even if § 2261(a)(2) requires violent conduct resulting in bodily injury to occur during the interstate travel, Page’s conduct meets this standard. Since the jury acquitted Page of kidnapping, the Department maintains that the threats of violence Page allegedly made during the trip from Ohio to Pennsylvania constituted a “crime of violence” under the meaning of the statute. The prosecution further contends that these threats resulted in “bodily injury” to the extent that they kept Scrivens from receiving medical treatment sooner and aggravated her preexisting wounds. There was testimony that Scrivens was “dripping blood onto the emergency room floor” when she arrived at the hospital several hours after the beating, Tr. at 159-61, J.A. at 215-17, and that she lost a significant amount of blood, which apparently caused her to become unconscious at times during the extended trip. Tr. at 437, J.A. at 335. There was also testimony that Scrivens was so swollen from the delay in getting to the hospital that emergency room personnel had to call an IV specialist team to get an IV into her. Tr. at 175, J.A. at 231. She experienced great pain throughout the trip. Tr. at 437, J.A. at 335.

We are satisfied that threats of violence may constitute a “crime of violence” for purposes of § 2261(a)(2). See 18 U.S.C. § 16(a) (“the term ‘crime of violence’ means ... an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another”). But the prosecution still must prove that these intentional acts of violence caused bodily injury to defendant’s spouse or intimate partner. 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.

The prosecution argues that the threats of violence allegedly made by Page during the drive to Pennsylvania kept Scrivens from receiving medical treatment for several hours. This delay, the prosecution asserts, caused the above-described aggravation of Scrivens’s preexisting injuries—in the form of bleeding and swelling—and therefore resulted in a new “bodily injury” to Scrivens for purposes of § 2261.

We conclude that aggravation of injuries inflicted before travel interstate may constitute a “bodily injury” for purposes of § 2261(a)(2); but, in order to establish violation of the statute, the prosecution still must prove that the defendant’s intentional acts during interstate travel caused such aggravation. Where the only bodily harm sustained during interstate travel was the worsening of a prior injury, § 2261(a)(2) requires the prosecution to prove that, during or as a result of interstate travel, the defendant “intentionally committed] a crime of violence and thereby eause[d]” such aggravation. In other words, evidence that injuries inflicted in prior domestic violence were worsened during or as a result of subsequent interstate travel is, without more, insufficient to convict under § 2261(a)(2). The prosecution, must also prove that the defendant intentionally committed a violent crime during interstate travel that caused the aggravation of the preexisting injuries.

In the present case, the proof the prosecution presented could sustain a verdict that Scrivens incurred “bodily injury” as a result of threats of violence made during the several hours of travel to the hospital. But the prosecution did not clearly communicate to, the jury the theory that the continuation or aggravation of preexisting injuries may constitute bodily injury for purposes of § 2261(a)(2). Rather, its theory at trial was that Page’s beating of Scrivens before travel commenced marked the onset of a “continuing assault” that Caused her bodily injuries. Tr. at 665. It presented the alternative theory that swelling, and bleeding could constitute distinct injuries to the District Court during arguments regarding the jury instructions, id. at 602, but the judge did not instruct the jury on this subject. Id. at 716-19. Instead, the court gave a general instruction that included only the language of the statute and some very general definitions for some of the terms employed therein. Id. This instruction suggested that injuries inflicted before interstate travel began could provide the basis for a conviction so long as the prosecution showed some connection between the previous violence and interstate travel. See id. at 716r-19 (discussing the elements of interstate domestic violence); id. at 721 (addressing the issues of timing and intent). Because we reject this interpretation of the statute, the jury was not properly charged. We cannot uphold a jury verdict on the aggravation theory in the absence of a proper instruction outlining the elements of the theory, as set out above.

IV.

Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Page argues that if § 2261(a)(2) is interpreted to reach his conduct, it exceeds the power of the federal government to regulate interstate commerce. Lopez identified three broad categories of activity subject to federal regulation under the Commerce Clause: (1) the use of the channels of interstate commerce; (2) use of the instrumentalities of commerce; (3) and noncommercial intrastate activity that nevertheless substantially affects interstate commerce. Id. at 558-59, 115 S.Ct. at 1629-30. Page contends that his conduct falls outside these categories because it constituted noncommercial intrastate activity which had ho impact on interstate commerce. Page’s argument ignores the prosecution’s alternative theory — that § 2261(a)(2) applies to his conduct during interstate travel.

Section 2261(a)(2) criminalizes only domestic violence occurring during or as a result of interstate travel that has been induced by force, coercion, duress or fraud. The Supreme Court has upheld numerous statutes criminalizing conduct that occurs during interstate travel, regardless of whether commercial activity is involved. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 255-56, 85 S.Ct. 348, 356-57, 13 L.Ed.2d 258 (1964); Edwards v. California, 314 U.S. 160, 172-73 & n. 1, 62 S.Ct. 164, 166 & n. 1, 86 L.Ed. 119 (1941); Caminetti v. United States, 242 U.S. 470, 491-92, 37 S.Ct. 192, 196-97, 61 L.Ed. 442 (1917). Relying on this authority, other courts of appeals have rejected similar challenges to different provisions of the Violence Against Women Act. See United States v. Wright, 128 F.3d 1274, 1275 (8th Cir.1997) (rejecting commerce clause challenge to § 2262(a)(1)); United States v. Bailey, 112 F.3d 758, 766 (4th Cir.1997) (rejecting constitutional challenge to § 2261(a)(1)). Because § 2261(a)(2) requires the government to prove that the domestic violence occurred during or as a result of interstate travel, the provision was validly enacted by Congress under the Commerce Clause and may properly be applied to conduct that satisfies its elements.

v.

Page maintains that the District Court erred in making several evidentiary rulings. First, he contends that the District Court should have admitted evidence of domestic violence complaints filed by Scrivens against Ed Burton, a man with whom she has cohabited and who is the father of one of her children. Page offered one complaint filed each year from 1990 through 1994 and one from September 1995, two months following the incident at issue in this case. Without clearly articulating his reasoning, Page argues that this evidence would have cast doubt on the government’s argument that Scrivens was his “intimate partner” for purposes of § 2261(a). He suggests that because Scrivens was Burton’s intimate partner, she could not also be his intimate partner. The prosecution concedes that Scrivens was Burton’s intimate partner but urges that a person may have more than one intimate partner at a time. The District Court apparently agreed, concluding that these complaints had very little probative value and were likely to mislead the jury.

The statute defines “spouse or intimate partner” as “a spouse, a former spouse, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited with the abuser as a spouse,” and “any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State in which the injury occurred or where the victim resides.” 18 U.S.C. § 2266. Under this definition, it is clear that Scrivens is Burton’s intimate partner because they share a child. At trial, the government presented evidence that Scrivens was Page’s intimate partner at the time of the attack, and Page does not challenge the sufficiency of this evidence. Instead, Page offered the domestic violence complaints to establish that Scrivens is Burton’s intimate partner and that Page is not. Nevertheless, the language of the statute clearly allows the victims of domestic violence to have multiple “spouse[s] or intimate partner[s].” For-instance, a woman who is divorced is the spouse or intimate partner of both her former and present husbands. Since Burton’s status has no bearing on whether or not Scrivens was also Page’s intimate partner, the District Court did not abuse its discretion by excluding this evidence.

Page also contends that the District Court should have admitted evidence that Scrivens was convicted of drunk driving in 1993 and failed to seek treatment for drug and alcohol dependency as required by her probation order. He argues that this evidence was probative of a continuing substance dependency that would have cast doubt on her credibility as a witness and would have corroborated Page’s claim that Scrivens was intoxicated and attacked on the night of July 24, 1995. The District Court acted within its discretion in refusing to admit this evidence, which bears little, if any, relevance to the issues in the case and would likely have prejudiced the jury against the victim.

The defendant also argues that the District Court improperly admitted into evidence-the self-styled “Release” sent by his former attorney to Scrivens seven days following the incident. The document asked Scrivens to “releaseU Derek Page from all claims and rights of action (civil and criminal)” stemming from the events of July 24, 1995, in exchange for payment of $450. Page contends that this document constituted an offer of compromise, inadmissible under Rule 408 of the Federal Rules of Evidence. The prosecution argues that it offered the release for the permissible purpose of proving an element of the kidnapping offense — that Page took Scrivens out of the state to avoid prose.-cution. Since Page was acquitted of kidnapping, and because the government makes no claim that this document is relevant, to the interstate domestic violence charge, we-need not pass on the admissibility of the release. For the same reasons, we shall not address Page’s argument that the District Court allowed Page’s former attorney to testify regarding the preparation of the release in contravention of the attorney-client privilege.

Finally,' Page contends that the District Court misapplied the Sentencing Guidelines in determining his base offense level. In light of our reversal of Page’s conviction, we need not address this argument. Nevertheless, we note that the Guidelines have been amended to include a provision for interstate domestic violence. See U.S.S.G § 2A6.2 (guideline for interstate domestic violence and stalking, effective November 1, 1997).

VI.

Because the jury was not properly instructed regarding the scope of the offense, we must remand the case for retrial: See United States v. Palazzolo, 71 F.3d 1233, 1237-38 (6th Cir.1995). The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

1 . The provision in question, 18 U.S.C. § 2261(a), reads in full as follows:

2261. Interstate domestic violence

(a) Offenses.—

(1) CROSSING A STATE LINE. — A person who travels across a State line or enters or leaves Indian country with the intent to injure, harass, or intimidate that person’s spouse or intimate partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence and thereby causes bodily injury to such spouse or intimate partner, shall be punished as provided in subsection (b).

(2) CAUSING THE CROSSING OF A STATE LINE. — A person who causes a spouse or intimate partner to cross a State line or to enter or leave Indian country 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 as provided in subsection (b).

2 . The 1990 proposal staled as follows:

§ 2261. ' Traveling to commit spousal abuse

(a) IN GENERAL. — Any person who travels or causes another (including the intended victim) to travel across State lines or in. interstate commerce and who, during the course of any such travel or thereafter, does an act that injures his or her spouse or intimate partner in violation of a criminal law of the State where the injury occurs, shall be fined not more than $1,000 or imprisoned for not more than 5 years but not less than 3 months, or both, in addition to any fine or term of imprisonment provided under State law.

S. Rep. No. 101-545, at 15 (1990).

3 . The 1993 Senate hill included a proposed version of § 2261(a)(2) that provided as follows:

CAUSING THE CROSSING OF A STATE LINE. — Any 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, commits an act that injures his or her spouse or intimate partner shall be punished as provided....

S. Rep. No. 103-138, at 20 (1993).