United States v. Robert Dale Belless

Citations: 338 F.3d 1063; 2003 Cal. Daily Op. Serv. 7118; 2003 Daily Journal DAR 8966; 2003 U.S. App. LEXIS 16361; 2003 WL 21885507Docket: 02-30089

Court: Court of Appeals for the Ninth Circuit; August 11, 2003; Federal Appellate Court

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Robert Belless was convicted of illegally possessing a firearm under 18 U.S.C. § 922(g)(9), which applies to individuals with prior misdemeanor domestic violence convictions. Belless contested the conviction, arguing that his prior misdemeanor offense did not qualify as a "crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A), primarily because his guilty plea was made without legal counsel and he was not adequately informed of his rights. The case stemmed from a 1995 incident where he was cited for battery against Kristen Belless, his wife, but the charge did not explicitly require a domestic relationship as an element of the crime. Despite being sentenced to a suspended term and probation, he later faced federal charges in 2001 for firearm possession due to this misdemeanor conviction.

The Ninth Circuit Court of Appeals reviewed the district court's denial of Belless's motion to dismiss the indictment de novo. The court noted that the federal statute defines "misdemeanor crime of domestic violence" as requiring an element of a domestic relationship between the perpetrator and victim, which was absent in Belless's case. The Wyoming statute under which he was convicted did not necessitate that the victim share a domestic relationship, meaning his prior conviction could not be classified as a crime of domestic violence for the purpose of federal law. Consequently, the appellate court reversed and remanded the case, highlighting the lack of a domestic relationship requirement in the underlying state offense.

The federal statute does not necessitate that a domestic relationship be an explicit element of a misdemeanor charge; it only requires that the misdemeanor be committed against an individual in a specified domestic relationship. In the case at hand, the victim, Kristen Belless, was the wife of the accused, Belless. The statute allows for conviction even if the act was committed against a stranger. There is no indication that Congress intended to exclude misdemeanors against individuals in domestic relationships from the scope of 18 U.S.C. § 921(a)(33)(A)(ii), regardless of whether the domestic relationship is included as an element in the charge.

The plain meaning of the statute reveals that it does not require the domestic relationship to be an element of the predicate misdemeanor. The statute's grammar indicates that "has as an element" refers to a singular requirement, specifically the use of physical force. The D.C. Circuit supports this interpretation, arguing that the phrase "committed by" modifies "offense," not "force" or "use." Therefore, a "misdemeanor crime of domestic violence" is defined as a misdemeanor offense characterized by the use of force, committed by someone in the requisite domestic relationship. The analysis is consistent with the interpretations of other circuit courts, emphasizing the distinction between the elements of force and the domestic relationship.

Congress may have made a syntactical error in using the singular "element" regarding the firearm statute, but the intention of the law is clear: to prevent individuals with a history of domestic violence from accessing firearms. This objective does not support restricting the statute to predicate offenses that explicitly include domestic violence as an element, since many cases of domestic violence are prosecuted under non-domestic statutes. While it is conceivable that Congress intended to limit the statute to offenses with a domestic element to clarify relationships and encourage states to enact domestic violence laws, this interpretation is not strong enough to contradict the consensus of other circuits.

Furthermore, the federal statute requires that the predicate offense involves "the use or attempted use of physical force, or the threatened use of a deadly weapon." The Wyoming statute, under which Belless was convicted, defines the crime as unlawfully touching another in a rude or angry manner, which does not necessarily involve "use or attempted use of physical force." The court holds that the "physical force" referenced in the federal statute must be significant, rather than minimal. The principle of noscitur a sociis indicates that the severity of the associated phrase, "threatened use of a deadly weapon," suggests a serious application of physical force, contrasting with the more trivial conduct described by the Wyoming statute. An illustration of this distinction is provided through a historical anecdote involving Vice President Nixon, where his confrontational gesture, while potentially characterized as "rude" or "angry," would not meet the threshold of physical force required by the federal standard. The Wyoming law appears aimed at preventing escalation in confrontational situations, rather than addressing serious physical assaults.

The Wyoming law against rude touchings does not satisfy the federal definition for a predicate offense necessary for felony firearm conviction, which requires the use or attempted use of physical force or the threatened use of a deadly weapon. Mere impolite behavior is insufficient; thus, broader battery statutes like Wyoming's, while potentially encompassing conduct leading to serious violence, cannot serve as the predicate offense. The federal definition of "physical force" refers specifically to violent force against an individual. 

In contrast, the First Circuit's ruling on a Maine statute, which criminalizes "offensive physical contact," aligns with federal law because it has been interpreted to require more than simple touching. While the record shows that Belless was charged with a violent act, it does not specify the conduct for which he was convicted, preventing a determination that he was found guilty of a predicate offense under a modified categorical approach.

Additionally, Belless pleaded guilty to misdemeanor battery without legal counsel. Under federal law, a conviction cannot be considered valid for firearm possession purposes unless the defendant was represented by counsel or knowingly and intelligently waived that right. Belless argues that he did not make a knowing and intelligent waiver, a position supported by circuit authority. In *United States v. Akins*, it was established that a defendant must be informed of the risks of self-representation for a waiver to be valid. The waiver Belless signed lacked warnings about these dangers, and there is no record of any oral or written advisement. Thus, similar to *Akins*, the mere labeling of the waiver as "knowing and intelligent" does not suffice. Consequently, Belless’s predicate conviction fails to meet the statutory condition regarding the right to counsel, and the court need not address potential Sixth Amendment violations.

The Wyoming battery statute does not require a domestic relationship for a conviction to count as a predicate offense under federal firearms laws but encompasses behaviors that are less violent than the required use or attempted use of physical force. Consequently, it is deemed too broad to qualify as a 'misdemeanor crime of domestic violence' under federal law. Additionally, Belless's guilty plea to the misdemeanor was invalid as he did not knowingly and intelligently waive his right to counsel, which is mandated by federal statute. The case has been reversed and remanded for further proceedings.