[00:00:01] Speaker 01: Morning, Your Honors. [00:00:03] Speaker 01: My name is Michael Donahoe. [00:00:04] Speaker 01: I work for the Montana Federal Defender's Office, and I'm here on behalf of Mr. DeFrance. [00:00:12] Speaker 01: You know, we all prepare for these arguments to the best of our ability, and I've had good days and bad days here. [00:00:20] Speaker 01: But I'm going to take a risk and make a preferential statement and ask your honors to maybe think about how to think about this case and the record in it. [00:00:35] Speaker 01: This would be a little unorthodox for me, but seems like something I should do. [00:00:40] Speaker 01: The record here is extensive. [00:00:43] Speaker 01: The issues, I think, in one of the briefs, the government characterized them as shotgun. [00:00:49] Speaker 01: That's sort of a pejorative term. [00:00:52] Speaker 01: It's just like you're trying to get through the paper and there's no meaning. [00:00:56] Speaker 01: You're just sort of protecting yourself. [00:01:00] Speaker 01: I'm not here to protect myself today. [00:01:03] Speaker 01: This was a very difficult case. [00:01:05] Speaker 01: It was hard to think out. [00:01:08] Speaker 01: It was hard to craft the record, to guide the record, to help the district court to make good decisions. [00:01:15] Speaker 01: And it occurred over the spectrum of the entire procedural wicket, if you will, from pre-trial motions, limiting papers, reconsideration papers, [00:01:29] Speaker 01: trial arguments, sentencing arguments, et cetera. [00:01:34] Speaker 01: So I could cherry pick some of these issues out of here and talk about them in isolation. [00:01:40] Speaker 01: But what I'm asking is that at the end of the day here for this particular argument, this particular case today, that the issues be looked at sort of together in a more holistic way. [00:01:54] Speaker 01: And I think that's warranted here, especially since jurisdiction's on the table. [00:01:59] Speaker 01: because there was never a contemporaneous finding that Mr. DeFrance was in a similarly situated spazzle type relationship until Judge Christensen made that finding. [00:02:14] Speaker 01: So there's distance in time and in quality between the PFMA from Montana and Judge Christensen's finding. [00:02:24] Speaker 01: And that's a problem because we have a lot of notice issues in play here. [00:02:30] Speaker 01: Fair warning issues, vagueness issues. [00:02:33] Speaker 01: All of those issues are on the table. [00:02:36] Speaker 01: So I'd like to walk through the record kind of quickly and start with Deputy Largent, who was the officer on the scene at the PFMA. [00:02:47] Speaker 01: He visits with the dispatcher, Mr. Brown. [00:02:52] Speaker 01: I'll call him Dispatcher Brown. [00:02:54] Speaker 01: They have a little powwow on the phone or on the radio. [00:02:57] Speaker 01: I don't know which. [00:02:59] Speaker 01: Both of these individuals testified at the trial. [00:03:03] Speaker 01: There's conversation, I think, coming from Deputy Largent, and he says to Mr. Brown, what's the relationship? [00:03:13] Speaker 01: It was at the top of his mind, Deputy Largent. [00:03:17] Speaker 01: He wanted to know. [00:03:18] Speaker 01: And when we got to the trial, I'll go right there. [00:03:21] Speaker 01: Deputy Largent was on the witness stand, and I asked him, I said, you had that exchange with Dispatcher Brown. [00:03:29] Speaker 01: Why was that? [00:03:31] Speaker 01: And he says, because it's a different investigative set for a domestic as opposed to just a generic assault. [00:03:40] Speaker 01: And then we talked about that, and I don't really need to go there. [00:03:44] Speaker 01: But it was on the table, the relationship. [00:03:48] Speaker 01: And it followed through. [00:03:49] Speaker 01: I can complete that. [00:03:51] Speaker 01: Deputy Largent interviewed the victim. [00:03:53] Speaker 01: She claimed a dating relationship with Mr. DeFrance that had been in existence for some nine months. [00:04:00] Speaker 01: She had recently returned to Montana in June of 2012. [00:04:04] Speaker 01: This event happened in April of 2013. [00:04:07] Speaker 01: And that gets written up that way, report-wise, et cetera. [00:04:14] Speaker 01: Then, if you just go to the guilty plea hearing, what we know about that from Judge Strine. [00:04:21] Speaker 01: Judge Strine, at the end of the day, says, you know, I just relied on the probable cause of deputy largent. [00:04:28] Speaker 01: So it fits snugly within the discussion here that we're talking about a dating relationship, and that's meaningful. [00:04:38] Speaker 01: Now, I could stop here, and probably I think I should, and talk about Hayes. [00:04:43] Speaker 01: One of the big objections coming from the district court is [00:04:50] Speaker 01: You know, Hayes doesn't allow this. [00:04:53] Speaker 01: As long as the element, the relationship element is part of the federal offense, we're good to go, regardless of whether or not the state statute has a relationship in it. [00:05:08] Speaker 01: And I'm just sorry, I beg to differ. [00:05:11] Speaker 01: That's too broad a reading of Hayes. [00:05:14] Speaker 01: There's two things from Hayes. [00:05:17] Speaker 01: Sort of right at the beginning, Justice Ginsburg says, [00:05:20] Speaker 01: The whole thing is that the domestic relationship need not be a defining element of the predicate offense. [00:05:28] Speaker 01: Need not be. [00:05:30] Speaker 01: And then later in the opinion, given the paucity of state and federal statutes targeting domestic violence, we find it highly improbable that Congress meant to extend 922G9 firearm possession [00:05:43] Speaker 01: than only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense. [00:05:55] Speaker 01: That to me, at a minimum, [00:05:58] Speaker 01: is ambiguous, and I actually think it's a fairly straightforward reading. [00:06:03] Speaker 01: The country has broken down into jurisdictions that have domestic relations type statutes or not. [00:06:11] Speaker 01: At that particular point in time, I think it's improved statistically. [00:06:16] Speaker 01: There are now currently more, maybe over half, in the United States. [00:06:21] Speaker 01: And there's no reason, and I can go right to the categorical approach, why in this particular instance you couldn't conduct a categorical analysis between the relationship element set forth in the Montana statute and the relationship element set forth [00:06:40] Speaker 04: Is your argument that Hayes was of its time and now because there are more essentially partner domestic violence statutes that now the relationship should be treated as an element that has to be matched? [00:06:54] Speaker 01: No, Your Honor, that's not it. [00:06:58] Speaker 01: That was an observation that there's more. [00:07:02] Speaker 01: I'm content that I'll even use the word few. [00:07:06] Speaker 01: There were a few jurisdictions stateside that had the relationship element in it. [00:07:12] Speaker 01: I'm just saying that Hays does not outlaw application of the categorical approach in this context. [00:07:22] Speaker 01: There should be some pretrial modality, procedural modality, [00:07:28] Speaker 01: to get into the case and say, is this a case where the federal law applies? [00:07:37] Speaker 03: But isn't that all dependent upon whether it's an element, the specific type of relationship? [00:07:43] Speaker 03: Is that an element as opposed to needing to show beyond a reasonable doubt a relationship, a qualifying relationship, as opposed to the specific type being a means? [00:07:54] Speaker 01: I don't actually understand the question. [00:07:57] Speaker 01: They're both elements. [00:07:59] Speaker 03: When you said there needs to be a modality to get in and do a categorical analysis, I understood you to be asking that question. [00:08:05] Speaker 03: It seems to me that there is a modality. [00:08:07] Speaker 03: And the question is, that really requires us to decide whether or not that type of relationship is an element that had to be. [00:08:15] Speaker 01: An element in the state side statute or the federal statute? [00:08:19] Speaker 03: The state statute. [00:08:20] Speaker 01: Yeah. [00:08:22] Speaker 03: I think several of your arguments really turn on that, that your contention that it's an element. [00:08:26] Speaker 03: That's why you think the indictment was infirm. [00:08:29] Speaker 01: Well, I think it is an element. [00:08:31] Speaker 01: There has to be some way to isolate that. [00:08:33] Speaker 01: Right. [00:08:33] Speaker 03: So why do you think it is an element? [00:08:34] Speaker 03: That's my question. [00:08:35] Speaker 03: Why do you think it's an element? [00:08:36] Speaker 01: I think it's an element because it works for the categorical approach. [00:08:40] Speaker 01: That's why I think it's an element. [00:08:43] Speaker 01: There should be some way to decipher that in a pretrial context. [00:08:47] Speaker 01: And if that doesn't work, [00:08:49] Speaker 01: then go to the collateral stopple component of the double jeopardy clause, which allows a deeper dive. [00:08:56] Speaker 01: You can go in and look at other things. [00:08:57] Speaker 03: Why do you think the government has stopped? [00:09:01] Speaker 03: Why do I think the government has stopped? [00:09:03] Speaker 03: Yes. [00:09:04] Speaker 01: That's a different part of the argument. [00:09:07] Speaker 03: I thought you were just going there. [00:09:09] Speaker 03: Forgive me. [00:09:10] Speaker 03: I didn't mean to interrupt you. [00:09:10] Speaker 03: I thought you were going there. [00:09:11] Speaker 01: All right. [00:09:12] Speaker 01: A stopple in what sense? [00:09:14] Speaker 01: Under the double jeopardy clause? [00:09:15] Speaker 01: Sure. [00:09:16] Speaker 01: Yeah. [00:09:20] Speaker 01: They're stopped because the record reflects at the plea hearing on the PFMA that Mr. DeFrance was in a dating context. [00:09:32] Speaker 03: Well, I think what your argument is, I understood your argument, your assertion in your brief, is that there was a finding to that effect. [00:09:38] Speaker 03: And I can't find the finding. [00:09:39] Speaker 03: And I'm not sure that I agree with you that it would have had to be one. [00:09:46] Speaker 03: But is there a place in the record where you think a finding was made to that effect? [00:09:49] Speaker 01: A finding of dating? [00:09:50] Speaker 03: Yes. [00:09:51] Speaker 03: That they were in a dating relationship. [00:09:53] Speaker 01: By implication, I think it overrides the finding that the district court made about being similarly situated. [00:10:03] Speaker 01: Ipso facto rejects the understanding that there was a dating relationship. [00:10:08] Speaker 03: But it does if you think they're mutually exclusive, I suppose. [00:10:11] Speaker 01: All right. [00:10:11] Speaker 01: Well, that's a different. [00:10:12] Speaker 01: And I guess I can think about that. [00:10:16] Speaker 01: That's not where we are right now. [00:10:19] Speaker 01: If that's where we want to go, I don't see them as a continuum. [00:10:26] Speaker 01: I don't know how we get around the bipartisan Community Safety Act. [00:10:33] Speaker 01: If Congress has to come in and say dating now today as of June 25th, 2022 is an element of the federal statute, I don't see that there's any continuum in there. [00:10:49] Speaker 01: It's a is or is not kind of context. [00:10:53] Speaker 01: If you show that there's some kind of dating relationship, and that's clearly what was going on here, [00:11:01] Speaker 01: There's no way to proceed factually or legally on a 922G9 offense. [00:11:08] Speaker 01: You could do that today, but you couldn't do that then. [00:11:12] Speaker 03: Why do you think that Judge Christensen didn't have the record he needed to make the finding that he made regarding the similarly situated finding? [00:11:20] Speaker 01: Why do I think he didn't have the evidence? [00:11:24] Speaker 03: Yes. [00:11:25] Speaker 01: OK. [00:11:26] Speaker 01: Because there's not anything, and this goes to my preparatory remark, there's not any decision in this country that explicates that. [00:11:36] Speaker 01: There's nothing that defines the components that go into it. [00:11:40] Speaker 01: The district court struggled, I think, on the issue of whether or not cohabitation would be a feature of this relationship. [00:11:49] Speaker 01: and just decided to reject it. [00:11:52] Speaker 01: But if you go in and look at the papers, there were six, seven cases that were cited. [00:11:57] Speaker 01: Many of them were non-public decisions. [00:12:00] Speaker 01: Several of them had cohabitation as was in the mix, defining those sorts of relationships. [00:12:09] Speaker 01: So what's one to do in terms of notice? [00:12:14] Speaker 01: How do you know if you're in it or not? [00:12:17] Speaker 01: How do you know, especially in this particular record, if you're before the PFMA court, knowing that you're in a dating relationship? [00:12:28] Speaker 01: If that's the case, the state of mind is, [00:12:32] Speaker 01: That statute, 922G9, doesn't apply to me. [00:12:37] Speaker 01: Citizens shouldn't have to be rooting around in decisions like Judge Christensen relied on to understand the law. [00:12:46] Speaker 01: That should be a straightforward application. [00:12:48] Speaker 01: I should be able to open the book and know where I am. [00:12:52] Speaker 01: There was nothing here in this record [00:12:55] Speaker 01: that told Mr. DeFrance that he was similarly situated as a spouse at 19 years of age with his 17-year-old girlfriend. [00:13:06] Speaker 01: Does that answer the question? [00:13:07] Speaker 03: I think you've answered it. [00:13:09] Speaker 01: Okay, thank you. [00:13:12] Speaker 03: Do you want to talk about your categorical analysis about the predicate offense and why it may or may not qualify? [00:13:19] Speaker 01: Well, it doesn't qualify because if it's a dating relationship, it's not a match. [00:13:24] Speaker 03: I'm talking about the element of the use of force. [00:13:26] Speaker 03: I'm just looking at the clock and wondering if you want to get to it. [00:13:30] Speaker 03: We know from the federal statute that the state counterpart has an element, the use of physical force. [00:13:36] Speaker 03: I think that's uncontested. [00:13:37] Speaker 03: So can you give me your best argument why you think Montana doesn't match? [00:13:41] Speaker 01: That's Castro. [00:13:43] Speaker 03: So Castro, of course, is not binding. [00:13:46] Speaker 03: And it expressly says in footnote four, it's not reaching the question. [00:13:50] Speaker 03: But I think we all know that. [00:13:52] Speaker 03: So could you just flesh out your reliance on CASTRO, please? [00:13:56] Speaker 01: All right. [00:13:56] Speaker 01: So bodily injury is a unitary term. [00:13:58] Speaker 01: It includes mental illness. [00:14:00] Speaker 01: It's overbroad. [00:14:02] Speaker 01: Castleman certainly applied the categorical approach to that, which is another interesting feature. [00:14:10] Speaker 01: in thinking about Hayes, clearly in some circumstances, the categorical approach applies. [00:14:17] Speaker 01: It depends on what element. [00:14:19] Speaker 03: Can we focus on this point first before we lose it? [00:14:20] Speaker 03: Because I want to make sure that I understand your argument. [00:14:23] Speaker 01: OK. [00:14:23] Speaker 03: I think you're relying heavily on Castro, and opposing counsel is going to rely heavily on Castleman. [00:14:28] Speaker 03: That's how the briefing looks to me. [00:14:30] Speaker 01: I think that's the landscape. [00:14:31] Speaker 03: So Castro, of course, was answering a different question, but you're still relying on it, because it makes this comment in the footnote where it compares the Montana statute to the Tennessee statute. [00:14:43] Speaker 03: True. [00:14:43] Speaker 03: Right? [00:14:44] Speaker 03: True. [00:14:44] Speaker 03: I think that's what you're relying upon. [00:14:46] Speaker 03: So I'm just trying to probe that, because it seems to me that what's happening, what the district court did, I think, from the record, is he looked purely at the elements, purely at the elements, and looked to see if on the text of the elements, without looking to case law, [00:15:00] Speaker 03: whether there was a match, because our case law suggests that if the statute is explicitly overbroad, you're done. [00:15:09] Speaker 03: Castro, of course, looked to see what Montana criminalizes, and it cast the net a little more broadly, because it included defining those terms by looking at case law. [00:15:21] Speaker 03: And I'm trying to figure out whether you think that's the, or why you think that's the correct approach for us to take here. [00:15:29] Speaker 01: I think the correct approach to take here is the simple one, and that is that bodily injury has its own definition in Montana. [00:15:39] Speaker 01: It's a unitary term, and it's overbroad because it [00:15:44] Speaker 03: So maybe I could do it this way. [00:15:46] Speaker 03: Montana has the verb, the actus reus, is as broad as it can get and is identical to Tennessee, right? [00:15:53] Speaker 03: Anyone, a defendant who causes bodily injury to a specific class of people. [00:15:58] Speaker 03: Those are the folks we're talking about. [00:16:00] Speaker 03: And then the question is, what's bodily injury mean, right? [00:16:02] Speaker 04: Right. [00:16:03] Speaker 03: OK. [00:16:03] Speaker 03: So I don't see any distinction at all between the Montana statute and the Tennessee statute on the actus reus. [00:16:10] Speaker 03: It really gets down to the text of the statute in terms of the resulting bodily injury. [00:16:16] Speaker 03: Can you explain to me why you think they differ? [00:16:18] Speaker 03: I think the district court thought they didn't differ. [00:16:21] Speaker 03: Montana's bodily injury definition, he didn't see any daylight between that and Tennessee's. [00:16:27] Speaker 03: And you think he's incorrect. [00:16:28] Speaker 03: Can you tell us why you think he's incorrect? [00:16:31] Speaker 01: OK. [00:16:31] Speaker 01: The only reason I could tell you why is because I've watched more than once the Castro argument. [00:16:37] Speaker 01: And there were questions from the panel that were, I think, directed to the government that indicated that you could accomplish the mental harm that's part of the unitary term without any type of force. [00:16:54] Speaker 01: And I think that's a fair reading of Castro. [00:16:57] Speaker 03: So, you're going right to the point that I want to try to explore. [00:17:02] Speaker 03: Do you think that that requires looking to case law in Montana as opposed to just looking at the textual elements? [00:17:10] Speaker 01: No, just to the element itself, yes. [00:17:13] Speaker 03: To the text. [00:17:14] Speaker 01: I mean, there's case law discussed in Castro. [00:17:17] Speaker 03: Exactly. [00:17:17] Speaker 01: Yeah, there's a fairly lengthy analysis. [00:17:21] Speaker 03: We have some other case law that indicates we ought not do that at step one of the categorical analysis, and that that really comes in step two, if a defendant is trying to show that Montana has or has not ever actually applied a statute in that way. [00:17:36] Speaker 03: So I'm trying to figure out if your position is that at step one, we ought to be looking at more than the text and should be looking at Montana case law. [00:17:44] Speaker 01: I think that we can complete that analysis by looking at the statute. [00:17:49] Speaker 03: Okay. [00:17:50] Speaker 03: That's a direct answer to my question. [00:17:52] Speaker 03: Yeah. [00:17:52] Speaker 03: Judge Rakod, do you have additional questions, Judge Song? [00:17:55] Speaker 03: Sir, would you like to reserve the last couple minutes of your time? [00:17:57] Speaker 03: Thank you. [00:17:57] Speaker 03: You bet. [00:17:58] Speaker 03: We'll hear from the government. [00:18:16] Speaker 02: Thank you, Your Honor. [00:18:17] Speaker 02: Tim DeTarque of the District of Montana on behalf of the United States. [00:18:20] Speaker 02: I'll start with the categorical approach issue. [00:18:24] Speaker 02: Unless the court would like to go in somewhere else. [00:18:28] Speaker 02: As Castleman says, to meet the lower standard for use of force for a misdemeanor crime of domestic violence, as opposed to the violent force necessary for [00:18:43] Speaker 02: felony crime of violence under the Johnson analysis, all that is required is that the statute cover common law battery. [00:18:53] Speaker 02: When Montana codified its assault statutes in response to the Model Penal Code in 1973, the Montana Code Commission, the drafters of that statute made clear that battery is an essential element of [00:19:13] Speaker 02: an assault for the provision of assault knowingly or purposefully or knowingly causing bodily injury under that subsection. [00:19:26] Speaker 03: The actus reus are you talking about or are you talking about for the resulting bodily injury? [00:19:31] Speaker 02: The actus reus. [00:19:33] Speaker 03: The actus reus for the Montana statute is identical to Tennessee. [00:19:37] Speaker 03: So I'm trying to tease out the difference between the, if there is one, between the resulting bodily injury. [00:19:44] Speaker 03: Maybe that's not what you're speaking to. [00:19:45] Speaker 02: No, no. [00:19:46] Speaker 02: I'll get back to the, yes, Your Honor. [00:19:54] Speaker 02: With respect to the, so the Actus Reius is the same between the Tennessee statute and the Montana statutes. [00:20:01] Speaker 02: The definition of bodily injury is, as Judge Waters said in the [00:20:14] Speaker 02: No. [00:20:15] Speaker 02: One of the other cases that are cited here. [00:20:18] Speaker 02: It's a distinction without a difference. [00:20:20] Speaker 04: The Tennessee statute covers... I mean, the custom didn't involve any sort of real engagement with the text of the Tennessee statute that [00:20:32] Speaker 04: we're dealing with here, and there is some textual difference, right? [00:20:35] Speaker 04: Mental, I think, impairment of a mental function versus, I think, mental injury or psychological injury, right? [00:20:43] Speaker 04: I think there is arguably a textual difference, and I don't have any sort of actual discussion in Castleman about that element. [00:20:53] Speaker 04: So it's hard to read Castleman as completely settling the issue here. [00:20:58] Speaker 04: And what I do read Castleman as settling is that there has to be some physical force, but it can be the least of the physical force possible. [00:21:10] Speaker 04: It could be the least offensive touching, it can be indirect physical force, but the force still has to be physical in some way. [00:21:18] Speaker 04: That's my understanding of Castleman. [00:21:20] Speaker 04: And my understanding of Castro is that we interpreted the PFMA as being something that can be violated through the use of non-physical force, emotional or intellectual force. [00:21:34] Speaker 04: If that's true, how do we have a categorical match here? [00:21:39] Speaker 02: So I agree with your assessment of Castleman. [00:21:43] Speaker 02: I disagree with your assessment of Castro because Castro expressly, as Judge Kristen noted in footnote four, said, we are not answering the question about whether or not Montana addresses common law force. [00:21:57] Speaker 02: We're only addressing the standard. [00:21:59] Speaker 04: I know they didn't answer the question, but they did interpret the PFMA, correct? [00:22:04] Speaker 04: I mean, they did say somewhere that they [00:22:08] Speaker 04: it is a statute that could be violated through the use of emotional or intellectual force or came pretty close to that. [00:22:19] Speaker 02: They came pretty close to doing that. [00:22:22] Speaker 02: I agree with that, Your Honor, but they did not do that, and there's a good reason. [00:22:25] Speaker 03: But it's not just that it's dicta. [00:22:26] Speaker 03: I think it's the decision tree as well. [00:22:27] Speaker 03: I'm really hoping you're going to engage with Judge Sunk's point, because this is what it's about for me. [00:22:33] Speaker 03: We're just looking at the resulting bodily injury, and Castro does talk about whether or not Montana was broader than Tennessee, or it might be, in terms of the bodily injury. [00:22:43] Speaker 02: And let me explain exactly why the Duane Alvarez analysis, the analysis of the case law leads to a different result here than it does in Castro. [00:22:53] Speaker 02: Take one of the cases that Castro relies primarily on is the Shen case. [00:23:00] Speaker 02: It's a district court case, but Castro relies on it. [00:23:03] Speaker 02: And that is a case involving sexual assault. [00:23:05] Speaker 02: And the sexual assault statute requires [00:23:10] Speaker 02: requires sexual, it's a misdemeanor if there's sexual contact, but that can be aggravated to felony if there is bodily injury in the course of that assault. [00:23:30] Speaker 02: The district court there said that bodily injury [00:23:36] Speaker 02: It doesn't require we know that it doesn't require violent force. [00:23:39] Speaker 02: There's an actual case that doesn't involve bottle physical force violent force under Johnson because it can just the injury can just be mental but there had to be physical contact and and so that's Right, but then you also have the stocking case where there is no evidence of any physical contact [00:24:00] Speaker 02: The stocking case there, so if I can just finish the point on Shen, because as I mentioned earlier, I think if you're going to look at the way Montana would decide this, you have to look at the code commission comments, because Montana looks at the commentary. [00:24:20] Speaker 02: I think that's true of... Wait a minute. [00:24:22] Speaker 03: Do you want us to look at the case law and the commentary at step one of categorical analysis as opposed to just looking at the elements? [00:24:30] Speaker 03: I really don't know that you've answered that question. [00:24:32] Speaker 03: And I'm... So I'm just talking about the order of operation before we get into the nuts and bolts of what Montana has criminalized. [00:24:38] Speaker 03: Okay. [00:24:39] Speaker 03: And that's the way to solve our... Of course, which is at the very end of the decision tree, right? [00:24:44] Speaker 03: At the very end, we do this cross-check and say, reality check. [00:24:48] Speaker 03: Has Montana ever really prosecuted this? [00:24:51] Speaker 03: And in this case, the answer is no. [00:24:53] Speaker 02: That is absolutely the case, Your Honor. [00:24:55] Speaker 03: So if you can go back up and tell me, because now you're confusing me by looking to commentary as well as case law. [00:25:01] Speaker 03: So my question is, at step one, when we do a categorical analysis, are we limited to looking to the elements, which seems to be suggested in some of our case law? [00:25:12] Speaker 02: Yes. [00:25:13] Speaker 02: I believe the answer is, so as I understand it, so as I understand it, you look at the elements and you have to look at whether or not the elements [00:25:32] Speaker 02: If the elements clearly go beyond, it is not a matter of interpretation. [00:25:37] Speaker 02: Take, for example, the case of an oral. [00:25:39] Speaker 03: That's Judge Sung's question. [00:25:41] Speaker 03: If we're doing that analysis, and we have case solve that says if the text of the statute explicitly goes beyond the federal counterpart, then the analysis is over. [00:25:52] Speaker 03: It's overbroad. [00:25:54] Speaker 03: That's what she's looking at. [00:25:55] Speaker 03: So from the text alone, you've now taken the position that we should just be looking at the text [00:25:59] Speaker 03: Can you explain us? [00:26:00] Speaker 03: I asked opposing counsel the same thing. [00:26:01] Speaker 03: He said, yes, without looking at case law. [00:26:03] Speaker 03: From the text alone, it's overbroad. [00:26:05] Speaker 03: I'd really appreciate hearing the government's response to that. [00:26:10] Speaker 03: Why is Montana broader than, why is Montana's definition of bodily injury broader or not broader than Tennessee? [00:26:20] Speaker 03: How does that compare, those two? [00:26:23] Speaker 02: It is not broader. [00:26:26] Speaker 03: Well, Montana includes mental illness or impairment. [00:26:30] Speaker 03: Tennessee includes temporary illness or impairment of a function of a mental faculty. [00:26:35] Speaker 03: And to Judge Sung's point, the Castro opinion talks about this and sees some daylight between these two. [00:26:43] Speaker 03: Why do you think that's incorrect? [00:26:45] Speaker 02: So in order for Castro to get there, Castro has to turn to look at the case. [00:26:50] Speaker 02: Castro then looks at the case law. [00:26:52] Speaker 02: Right, that's how, the way that Castro decides, and again, Castro didn't answer this question, but Castro says we might be able to come to a conclusion that Tennessee is narrower if we turn to look at the case law. [00:27:07] Speaker 02: And what I am saying is if we look at, if we are turning to look to the elements [00:27:14] Speaker 02: to look beyond the elements to the interpretive tools, we have to look at both the fact that Montana has never applied this statute more broadly, and if you look at the legislative intent, the legislature made clear when they adopted it that it doesn't include, doesn't go more broadly than, that battery is an essential element. [00:27:37] Speaker 02: We quote that language from the Code Commission at page 34 of our brief. [00:27:41] Speaker 02: And so in 50 years, [00:27:44] Speaker 02: When Montana adopted the statute, they said, this battery is an essential element. [00:27:51] Speaker 02: And in 50 years of applying that case law since then, there has never been an assault under any of Montana's statutes that involves assault purposely or knowingly causing bodily injury that did not include common law battery. [00:28:10] Speaker 03: So that latter point is uncontested. [00:28:11] Speaker 03: It's never been prosecuted that way. [00:28:13] Speaker 03: I fully appreciate that. [00:28:15] Speaker 03: But I'm really trying to figure out this order of operations question. [00:28:19] Speaker 03: And so you've now said you think that we're looking at the text alone, yes? [00:28:26] Speaker 03: To decide whether or not it's over abroad, is that right? [00:28:30] Speaker 00: Now I thought you were saying that the text has to be viewed, even before we get to the practice thereafter, in light of what the legislature indicated in the legislative history was the meaning of the text, and that was that there had to be battery. [00:28:49] Speaker 00: and that this was then reinforced by what happened subsequently, which was no case that did not involve battery. [00:28:58] Speaker 02: That is correct, Your Honor, and if I can try to address Judge Christian's question. [00:29:07] Speaker 02: The analysis, comparing the two, the language textually, the question can't be, does the statute admit of a possible interpretation that is broader, because then that would be just purely an act of legal imagination. [00:29:25] Speaker 03: Well, that's not what Castro did. [00:29:28] Speaker 03: Castro wasn't relying on pure imagination, right? [00:29:34] Speaker 04: It was relying on the textual broadening of the definition of bodily injury to include mental injury. [00:29:43] Speaker 04: Correct. [00:29:43] Speaker 04: And saying that there's no reason, nothing in this statute that cabins [00:29:49] Speaker 04: because that mental injury can be caused by non-physical force, it doesn't take a leap of faith to think of a factual scenario in which mental injury can be caused by non-physical force. [00:30:05] Speaker 04: And then I try to understand your contention, I think, based on the commission comments that [00:30:11] Speaker 04: They're saying battery what they actually say is actual what you quote in your brief Is that actual bodily injury or contact of some kind is an essential element, but then they have broadened the definition of bodily injury So I don't see anything that says physical force is an element of the crime of PFMA, but your your honor so if you're just going to you're gonna say it doesn't take an active of love legal imagination to say causing a [00:30:41] Speaker 02: mental illness or impairment without mental injury, the same thing has to be true of Tennessee. [00:30:52] Speaker 02: If you look entirely in the abstract, the Tennessee statute saying causing temporary illness or impairment of a mental faculty, at least in midst of the possibility. [00:31:04] Speaker 03: That's exactly what the district court decided. [00:31:06] Speaker 03: He couldn't see any daylight between the [00:31:10] Speaker 03: definition of bodily injury in the Montana statute and the definition in the Tennessee statute. [00:31:14] Speaker 03: Castro, albeit in a footnote, I'll give you that, and it's not, it's dicta, it's not binding, but Castro thought there was a difference. [00:31:20] Speaker 03: And I just would really appreciate if you could tell me why was Castro wrong about that? [00:31:24] Speaker 02: Because in order to find a difference, Castro had to turn to the Tennessee case law. [00:31:31] Speaker 04: Tennessee case law, not the Montana case law. [00:31:34] Speaker 02: No, yeah, yeah. [00:31:37] Speaker 02: But if you're going to turn to the Tennessee case law, then you have to also look at the Montana case law and the Montana's statement that, and I would push press a little bit on that, the statement from the Code Commission says it requires battery. [00:31:51] Speaker 02: That is bodily injury or [00:31:55] Speaker 02: or offensive contact, and then explains that even the provision that doesn't require the provision about apprehension requires apprehension of bodily injury, not mere physical contact or mere offensive touching. [00:32:11] Speaker 02: That language would be very strange to use the term battery entirely [00:32:18] Speaker 02: disassociated with its common law history as touching. [00:32:24] Speaker 02: And Montana didn't do that. [00:32:26] Speaker 02: I noted in the robbery statute, when they were diverging from common law for a term like robbery, they did expressly say, we're diverging from the common law here and explain why. [00:32:39] Speaker 03: So can we talk about Castleman for a minute? [00:32:41] Speaker 03: Because it seems to me that Castleman doesn't include the type, and I think Judge Sung alluded to this, some of the granular analysis that we would maybe expect to see in some categorical analyses. [00:32:53] Speaker 03: And so it leaves some question, at least in my mind, unanswered about how they got to where they got. [00:32:58] Speaker 03: And the district court, I think, found it significant that he thought the statutes were comparable, Montana's comparable to Tennessee. [00:33:05] Speaker 03: And the Supreme Court said, Tennessee qualifies. [00:33:09] Speaker 03: I think that was a part of the district court's reasoning. [00:33:11] Speaker 03: Do you think I have that wrong? [00:33:13] Speaker 03: No, I mean, I think there's no question that... All right, so what do we do about the fact that we're not... If we have questions left about how the Supreme Court got there in Castleman, what do we do about that? [00:33:24] Speaker 02: I think that's exactly how Duane Alvarez is supposed to work. [00:33:28] Speaker 02: The question isn't, can I read this statute in a way, using an act of legal imagination, can I read this statute in a way that it might be broader than [00:33:39] Speaker 02: than physical force. [00:33:41] Speaker 02: If I have a question after looking at the text, which I think you have to have here, [00:33:48] Speaker 02: If I have a question after the text, then Duane Alvarez has to apply. [00:33:53] Speaker 02: And you have to find an actual case where the state applies the statute over broad. [00:33:59] Speaker 02: And Montana said that it intends to require batteries and essential element. [00:34:05] Speaker 02: And in 50 years since that, it has never done an assault statute that doesn't require that. [00:34:09] Speaker 03: Is there case law from other circuits that have [00:34:12] Speaker 02: Engage in this kind of analysis post Castleman about other states domestic violence laws that we should be looking to or be concerned about splitting with The There are very few cases that have that have conducted this there there are many cases that draw the distinction between the force necessary for for violent force and the force [00:34:38] Speaker 02: and statutes saying statutes don't meet that standard, but doing the analysis, we find that battery is sufficient. [00:34:50] Speaker 02: But there are very few cases that put assault statutes entirely outside of Castleman, and I think that goes to that purpose [00:35:00] Speaker 02: And interpreting that way would turn 922G9 into a dead letter in Montana. [00:35:05] Speaker 03: Counsel, can you just tell me out if you would, are there cases, circuit cases out there or district court cases out there that have done this kind of analysis and looked at other states' definition of bodily injury to try to find out whether or not they satisfy the physical force requirement for 922G9? [00:35:24] Speaker 02: I do not know of any other statutes interpreting bodily injury, this type of definition of bodily injury. [00:35:34] Speaker 03: You said statutes. [00:35:35] Speaker 03: Do you mean no other cases? [00:35:37] Speaker 02: No other cases interpreting this kind of language of bodily injury. [00:35:42] Speaker 02: Again, I think the analysis really is straightforward. [00:35:49] Speaker 02: Excuse me. [00:35:52] Speaker 02: Cast there's a reason why cases don't decide more than they need to Castro did not decide this case and the we know The shin case has to lead to a different result here than it than it would in Castro I think the the stocking cases do too because while it's one thing to say those cases involve substantial risk of bodily injury and [00:36:18] Speaker 02: It's one thing to say the court didn't do any analysis. [00:36:21] Speaker 02: The court found serious bodily injury without doing any assessment of the risk of violent physical force. [00:36:30] Speaker 02: But underlying those cases, it is undisputed that those cases concluded that the fear that the victim had was a fear based on physical safety. [00:36:45] Speaker 02: The court did not say there is no risk of physical contact, but we're finding violent force anyway. [00:36:54] Speaker 02: So the Duanez-Alvarez analysis has to be done from scratch here. [00:36:59] Speaker 02: And Montana, from the time that the statute was put in place, says the battery is required. [00:37:08] Speaker 02: It has never applied the statute to a case where physical force was not involved. [00:37:17] Speaker 02: In the sexual context, which I think is really valuable for this court to look at, [00:37:28] Speaker 02: Code Commission expressly looked at it and said, we know that the risk with what they call indecent assault, the harm there is going to be more mental than physical. [00:37:39] Speaker 02: It has to do with shame and things like that. [00:37:44] Speaker 02: But in the assault statute, we're requiring contact, and we're going to put away things like [00:37:51] Speaker 02: uh... indecent exposure to a uh... for other statues it would make absolutely no sense for montana in a kid in in the context where it was actually considering mental harm considering the impact of shame and things like that to say yes but in sexual contact there has to be in the sexual assaults category there has to be contact [00:38:17] Speaker 02: without any commentary saying, but we can say, purposely or knowingly causing bodily injury can be done without any contact whatsoever. [00:38:30] Speaker 03: I have one more question. [00:38:31] Speaker 02: Sure. [00:38:31] Speaker 03: All right. [00:38:32] Speaker 03: So in Grisel, we said, if a statute explicitly defines an offense more broadly, no imagination is required. [00:38:37] Speaker 03: And both parties invoked that. [00:38:39] Speaker 03: And the question is, at what point do we engage in that analysis? [00:38:42] Speaker 03: And my question for you, I know you know that. [00:38:44] Speaker 03: That's not the question. [00:38:45] Speaker 03: My question is whether you're familiar with our case called United States versus Lerico Yeno. [00:38:52] Speaker 02: That sounds familiar. [00:38:53] Speaker 02: Could you remind me what the? [00:38:56] Speaker 03: It wasn't a trick question. [00:38:58] Speaker 03: It's a short opinion that goes to this point about at the categoricals, what I'm calling step one. [00:39:04] Speaker 03: Are we just comparing the elements or are we allowed to look at case law? [00:39:09] Speaker 03: And forgive me. [00:39:10] Speaker 02: Is that the one where you and Judge Sung on that panel? [00:39:13] Speaker 03: We were not on that one. [00:39:14] Speaker 02: OK, because there was one I read recently that I thought you two, pardon me for saying it that way, that there was some language in the case, and similar language was used in your concurrence in house, where you referred to the text being expressly overbroad. [00:39:39] Speaker 02: And I think there is a big difference between saying burglary includes automobiles, as in Griselle, and saying this language admits of an interpretation that might be overbroad. [00:39:52] Speaker 02: So there we do need to look at the case law. [00:39:54] Speaker 02: I hope I answered you. [00:39:55] Speaker 03: You've done great, and I've taken you over your time. [00:39:58] Speaker 04: I guess I do have a question, because in Castro, they cited Montana District Court case, I think, where they expressly consider a situation in which mental injury is caused through [00:40:12] Speaker 04: You know tirade of emotional abuse essentially no physical contact no physical threats and so I'm trying to understand why that interpretation of the PFMA being Something that can be you know where that type of mental injury can be caused without the use of physical force is not [00:40:41] Speaker 04: Controlling here. [00:40:42] Speaker 02: We have three judges on the 9th circuit plus a district court judge all saying on its face This statute can be can be violated through the use of emotional or intellectual force Thank you very much for asking that question because the Ross case the Ross case I recommend the court's attention to page 4 of the Ross case page 4 of the Westlaw site on the Ross case because immediately after that sentence the court makes that sentence this could be done using a tirade of insults and [00:41:07] Speaker 02: in that same paragraph, the court backs away from that. [00:41:11] Speaker 02: The court says this can be done with a tirade of insults. [00:41:13] Speaker 02: It then says a case with less than Johnson level force would likely be sustained by the Montana Supreme Court. [00:41:23] Speaker 02: And then the first sentence of the next paragraph says this court found no cases on point. [00:41:29] Speaker 02: So Ross is expressly a [00:41:32] Speaker 02: And that commentary in Ross is expressly an exercise in judicial imagination. [00:41:40] Speaker 02: And then the court turns to these other cases, the cases that we've discussed, Cooney and the cases that Judge Christensen distinguished below. [00:41:51] Speaker 02: I really think that this court has to do the Duane Alvarez analysis anew, because this would make 922G9 a dead letter in Montana, not congressional Montana. [00:42:02] Speaker 03: Thank you for your argument, counsel. [00:42:04] Speaker 00: Thank you. [00:42:05] Speaker 00: Are you familiar with the case in which the panel is Judge Sung, Judge Christian, and myself that addressed all these issues? [00:42:15] Speaker 00: I look forward to. [00:42:16] Speaker 00: Yeah, well, that's right, because there is no such prior case, right? [00:42:21] Speaker 00: Thank you very much, Your Honor. [00:42:24] Speaker 01: Sure. [00:42:24] Speaker 01: Counsel? [00:42:25] Speaker 01: Your Honor, I appreciate very much the extra time. [00:42:29] Speaker 01: I really don't have anything except to say thank you for being here. [00:42:33] Speaker 01: Thank you, Judge Rakoff. [00:42:35] Speaker 01: And anything I didn't get to, please take account of the briefing. [00:42:42] Speaker 03: Judge Sun, any other questions? [00:42:44] Speaker 03: No. [00:42:44] Speaker 03: Thank you for your advocacy. [00:42:45] Speaker 01: Thank you. [00:42:45] Speaker 03: Both of you, it's an important case. [00:42:47] Speaker 03: It's not an easy case. [00:42:48] Speaker 03: We'll take it under advisement, and we'll get you a decision just as soon as we can. [00:42:51] Speaker 03: We'll be in recess.