Supreme Court Update: McDonnell v. United States (15-474) and Voisine v. United States (14-10154
Greetings, Court Fans!
Though most of the attention coming out of the final decision day of OT15 has focused on Whole Woman's Health v. Hellerstedt (15-274), where a 5-3 majority held that a Texas law regulating abortion providers imposed an undue burden on a woman's right to choose, the Court also announced two important criminal-law decisions, touching on the federal government's ability to regulate guns and graft. This Update will cover those decisions—McDonnell v. United States (15-474) and Voisine v. United States (14-10154). We'll be back later to round out our coverage of the term with Hellerstedt and the orders from the Court's end-of-term "clean up" conference.
The Chief Justice's unanimous opinion in McDonnell v. United States is a good read, but more for the description of gifts that former Virginia Governor Robert McDonnell received from businessman Jonnie Williams than of the favors that McDonnell bestowed in return. McDonnell got to take spins in Williams's Ferrari and private plane, a new Rolex, a designer shopping trip for his wife, wedding expenses for his daughter, and other gifts and loans totaling $175,000. In return, McDonnell "arrang[ed] meetings," "host[ed] events," and "contact[ed] other government officials" on Williams's behalf. The Government claimed that these activities were "official acts," and McDonnell therefore committed honest-services fraud. The Court disagreed.
Clearing away the "tawdry tales of Ferraris, Rolexes, and ball gowns," the case centered on the interpretation of the federal bribery statute, 18 U.S.C. § 201, which makes it a crime for a public official to receive or accept anything of value in return for being influenced in the performance of any "official act." An "official act" is defined as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official." At trial, McDonnell acknowledged receiving the gifts and arranging meetings, but he and other officials testified that he never asked them to do more than meet. McDonnell's attorneys asked for a jury instruction that the routine activities of public officials, such as arranging meetings, are not, standing alone, "official acts," and that an "official act" must influence or intend to influence a specific official decision the government actually makes, such as awarding a contract, hiring a government employee, or implementing a regulation. The District Court declined to give this instruction, and instead gave the Government's requested instruction, that the term "official act" encompasses acts that a public official ordinarily performs, including acts in furtherance of longer-term goals, or acts in a series of steps to exercise influence or achieve an end. McDonnell was convicted, and the conviction was affirmed by the Fourth Circuit.
The Court vacated, finding the instructions on "official act" to be "significantly overinclusive." First, the Court found that a typical meeting, call or event is not itself a "question, matter, cause, suit, proceeding or controversy." The last four words in this list connote a formal process. While the first two words—"question" and "matter"—could be interpreted more broadly, the Court determined that it was better to interpret them narrowly, as a "question" or "matter" pending before a formal body. This narrower interpretation was in keeping with the canon noscitur a sociis, in which "a word is known by the company keeps," and would avoid rendering the last four words superfluous.
Turning to whether a meeting, phone call, or event may qualify as a "decision or action" on a different question or matter, the Court first held that the question or matter must be something that is relatively circumscribed, as the statute specifies a question or matter that is "pending" or "may by law be brought" before a public official. An official's general and continuing interest in economic development ("Bob's for Jobs," as McDonnell's campaign slogan—and the prosecution's refrain at trial—went) would not qualify. The Court agreed that at least three questions or matters that the Fourth Circuit had identified were sufficiently concrete to qualify as a "question" or "matter" under the bribery statute—whether state universities would research the dietary supplement Williams's company had developed; whether the state would provide grant money for the research; and whether the state would cover the supplement under its employees' health insurance plan. But, unlike the Fourth Circuit, the Court was not persuaded that routine activities such as arranging meetings, hosting events, and contacting other government officials were, in themselves, a "decision or action" under the statute. They might be evidence of an agreement or pressure to make a decision or action, but standing alone, they are not "official acts."
Overall, the Court expressed concern that the broader interpretation advanced by the Government and lower courts would "cast a pall" over elected representatives' interactions with their constituents. Moreover, the Government's interpretation risked being unconstitutionally vague, as well as potentially interfering with the States' prerogative to regulate their own officials' interactions with constituents. The Court sent the case back to the Fourth Circuit for a determination of whether there was sufficient evidence to convict McDonnell under the correct interpretation of "official act," and to dismiss the charges if not.
Guns, domestic violence, and even an eagle assassination were all in play in Voisine v. United States (14-10154), a case where the Court helped Congress "close [a] dangerous loophole" in federal gun control laws. For the last twenty years, federal law has prohibited anyone convicted of a "misdemeanor crime of domestic violence" from possessing a gun. 18 U.S.C. § 922(g)(9). Congress defined that phrase to include any misdemeanor committed against a domestic relation that involves the "use . . . of physical force." Two terms ago, in United States v. Castleman (2014), the Court held that a knowing or intentional assault was such a crime. In Voisine, the Court clarified that the same was true for a reckless assault.
The case involved two defendants convicted under a Maine statute, which made it a misdemeanor to "intentionally, knowingly, or recklessly cause bodily injury or offensive physical contact to another person." Petitioner Stephen Voisine pled guilty to violating the statute after he assaulted his girlfriend. Several years later, federal authorities investigated Voisine for killing a bald eagle, and learned that he owned a rifle. When a background check turned up Voisine's prior conviction, the federal government charged Voisine with unlawful possession of a firearm. Petitioner William Armstrong's story is similar, if less colorful. Armstrong had pled guilty to violating the Maine statute after he assaulted his wife. A few years later, federal agents searched his home as part of an unrelated narcotics investigation and found a handgun. They charged Armstrong with unlawful possession of a firearm.
Both men argued that their convictions did not involve the "use . . . of force" because the Maine statute covered reckless violence. A reckless assault involves someone acting with conscious disregard to a substantial risk that his conduct will cause injury to another. By comparison, a knowing or intentional assault requires the assailant to act when he is "aware that [harm] is practically certain" or with the conscious objective of causing such harm. The District Court rejected the argument, and each defendant then pled guilty. The First Circuit affirmed, and the two men filed a joint petition for certiorari. The Court vacated and remanded the case for further consideration after the Court decided Castleman. On remand, the First Circuit again upheld the conviction on the same grounds. This time the Court vacated for good.
Everyone except Thomas and Sotomayor joined Justice Kagan's opinion affirming the convictions. Kagan explained that the statutory phrase "use of force" included the word "use," which ordinarily means the "act of employing" something. Based on dictionary definitions, Kagan concluded that "use" was supposed to cover acts that were volitional (as opposed to involuntary or accidental). To explain the difference, she gave the example of a man breaking a plate. If a man drops a soapy plate, injuring his wife, he does not "use" force. But, when he throws the plate at the wall next to his wife's head, he does "use" force. Kagan concluded that Congress employed the word "use" to carve out the accident in the first example, but could not have intended to carve out the conduct in the second. Reckless conduct is no accident, Kagan explained. It is the conscious disregard of a known risk.
Kagan found support for this in the legislative history, which showed that Congress had enacted the "use of force" provision at a time when a significant majority of jurisdictions defined misdemeanor offenses to include reckless infliction of harm. Congress must have known that it was broadly sweeping in such misdemeanors. In fact, that was the point of the statute: to apply federal firearms restrictions to those abusers who were covered by the State's ordinary misdemeanor assault laws. Were the Court to accept petitioner's argument, it would render the statute inoperative in those 35 jurisdictions. For example, the Maine statute treats causing bodily injury or an offensive touching as a single, indivisible offense that is satisfied by recklessness. This means that petitioners' prior assault convictions did not necessarily require proof of intentional or knowing use of physical force against a family member. Thus, under petitioners' interpretation, no conviction under the Maine statute would qualify as a "misdemeanor crime of violence."
Justice Thomas dissented, joined in part by Justice Sotomayor. Thomas disagreed with the majority's definition of "use," arguing that the word was best read to require intentional conduct. "Force" usually connotes "violence" against another, Thomas noted. And "violence" usually requires an intentional act. Thomas found support for this proposition in a number of similar statutory provisions where "use" meant "intentional." For example, neighboring § 921(a)(33)(A)(ii) prohibits "the threatened use of a deadly weapon." Thomas believed that "use" in that provision most naturally means active employment of the weapon, which suggests that "use" in § 922 did not include merely reckless conduct. Thomas worried that "recklessness" could lead to absurd results, punishing the man who crashes his car while texting his wife. He knows he should be texting and driving, and the accident injures his son. In that case, the husband has recklessly unleashed a force that resulted in harm to a family member. Thomas did not believe Congress could have intended to capture such conduct.
Beyond those concerns, Thomas went on (now without Sotomayor in tow) to voice the concerns he had initially raised at oral argument, when he broke his decade-long streak of not asking a question to inquire about the Second Amendment implications of the Government's position. In Thomas's view, the majority's reading of the statute raises serious constitutional problems because it permits the Government to deprive an individual of his right to bear arms based on a single misdemeanor conviction. As Thomas pointed out, the Government was unable to point to "any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine." Therefore, under the doctrine of constitutional avoidance, Thomas would not read "use of force" to include merely reckless conduct.
That's all for this installment. We'll be back with a final Update covering Hellerstedt and the Court's most recent orders, including a slew of cases accepted for argument next term.