Argued and Submitted December 4, 2002 — Seattle, Washington.
KLEINFELD, Circuit Judge.
Robert Belless was convicted of illegally possessing a firearm, in violation of 18 U.S.C. § 922(g)(9), which makes possession of a firearm illegal for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence." He challenges his federal conviction on the grounds that his prior misdemeanor conviction is not within the firearm statute's
Robert Belless's prior crime arose from a citation for violating Wyoming Statute § 6-2-501(b), which states that he committed "assault & battery by assaulting Kristen Belless — grabbing her chest/neck area and pushing her against her car in an angry manner." The citation does not say so, but Kristen Belless was married to Robert Belless when he committed battery against her.
He was put in jail, and taken to court the next day. There, without a lawyer, he pleaded guilty. Before sentencing, he obtained counsel, who moved unsuccessfully to have Belless's plea vacated. Belless was sentenced to serve ninety days, all suspended except for the time in jail he had already served, plus a $270 fine and six months probation.
Six years later, in 2001, Belless was indicted in federal court for the felony of possessing a firearm "having been convicted of a misdemeanor crime of domestic violence."
We review the district court's denial of Belless's motion to dismiss de novo.
THE UNDERLYING CRIME
The federal firearms statute makes it a felony for any person "who has been convicted in any court of a misdemeanor crime of domestic violence" to possess a firearm "in or affecting commerce."
A. Domestic Relationship
The Wyoming crime to which Belless pleaded guilty does not include as an element that the victim share one of the domestic relationships specified in 18 U.S.C. § 921(a)(33)(A)(ii) with the perpetrator. It says only that "A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another."
The federal statute does not require that the misdemeanor statute charge a domestic relationship as an element. It requires only that the misdemeanor have been committed against a person who was in one of the specified domestic relationships. It is uncontested in this case that the victim named in the Wyoming citation, Kristen Belless, was Belless's wife, but he could have been convicted of the crime even had he grabbed a perfect stranger by the arm and angrily shoved him against his car. We find no indication that Congress intended to exclude from the misdemeanors that may trigger 18 U.S.C. § 921(a)(33)(A)(ii) those crimes that are in fact committed against persons who have a domestic relationship specified in the statute, even if the triggering crime does not include such a relationship as an element. Our construction is consistent with the position taken by all seven of our sister circuits to have spoken to the issue.
We look first to the text and plain meaning of the federal statute.
We agree with the D.C. Circuit that to read the "committed by" phrase as modifying the phrase that immediately precedes it ("the use or attempted use of physical force, or the threatened use of a deadly weapon") would be grammatically unsound.
True, in making "element" singular, Congress could have made a syntactical error.
The alternative reading has some force. We might suppose that Congress did indeed make a error in syntax, and may have intended to limit predicate offenses to those with a domestic element, both to avoid questions years later about what the relationship might have been between the perpetrator and the victim, and to spur states to pass statutes that expressly focus on domestic violence. The argument for so construing the statute, however, is not so compelling as to persuade us to depart from the views of all the other circuits to rule on the issue.
Thus we reject Belless's argument that the federal statute requires that the predicate offense have the domestic relationship as an element.
The federal statute says that the predicate offense must include as an element "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 touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another." Belless argues (correctly, we conclude) that the Wyoming statute embraces conduct that does not include "use or attempted use of physical force."
Any touching constitutes "physical force" in the sense of Newtonian mechanics.
In 1959, when Vice President Richard Nixon took Soviet Premier Nikita Khrushchev around an American exhibit of an $11,000 American tract house, the Soviet leader fulminated about the foolishness of having different brands of washing machines and the unlikelihood that American workers could afford such a "Taj Mahal," as the Soviets called the house. Nixon angrily told Khrushchev just how wrong he was, jabbing the Soviet Premier's chest with his pointed finger as he expostulated with his face inches away. Had Richard Nixon been in Wyoming instead of the Soviet Union, he might have been charged with the same crime as Belless. The ungentlemanly act of hollering in anyone's face, much less a chief of state's, may be characterized as "insolent," and pointing a finger at someone, much less touching him with the finger, may fairly be characterized as "rude," and both men, though perhaps exaggerating their affect for the crowd,
But the Wyoming law against rude touchings does not meet the requirements for the federal statute that defines the predicate offense for a felony firearm conviction: "the use or attempted use of physical force, or the threatened use of a deadly weapon."
Our analysis is not in conflict with the First Circuit's decision that a Maine statute that criminalized "offensive physical contact" furnished a predicate for a conviction under § 922(g)(9).
The record indicates that Belless was charged with conduct that was a violent act and not merely a rude or insolent
C. Right to Counsel
When Belless pleaded guilty to misdemeanor battery of his wife, he did not have counsel. The federal statute that prohibits possession of a firearm by persons who have been convicted of certain crimes of domestic violence requires that a defendant have been represented by counsel or have waived the right to counsel knowingly and intelligently before being convicted of a predicate offense. "A person shall not be considered to have been convicted of such an offense for purposes of this chapter unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case."
In United States v. Akins we held that, "for purposes of 18 U.S.C. § 922(g)(9), a defendant pleading guilty to a misdemeanor must be informed of the dangers and disadvantages of self-representation before a waiver of the right to counsel will be deemed knowing and intelligent."
The case at bar is controlled by Akins in this respect. Belless signed a written waiver, but the form he signed did not include a warning of the dangers and disadvantages of self representation. There is no record of any other such warning, oral or written. The written form describes itself as a "dialogue between Defendant and the Court," and provides check-boxes next to several yes or no questions to be answered by the defendant. Calling it a "dialogue" does not make it so, any more than calling the waiver "knowing and intelligent" in Akins made it so. Thus Belless's predicate conviction does not, under Akins, meet the statutory condition that the prior conviction have been obtained with counsel or that the right to counsel have been waived knowingly and intelligently.
We need not reach the question of whether Belless's Sixth Amendment rights were violated because we conclude that the statutory condition was not met.
Although the Wyoming battery statute need not include a domestic relationship as an element of the crime in order for a conviction under it to serve as a predicate offense for a conviction under the federal firearms statute, it encompasses less violent behavior than the requisite use or attempted use of physical force and thus is too broad to qualify as a "misdemeanor crime of domestic violence."
REVERSED AND REMANDED.