United States v. Costigan ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2457
UNITED STATES,
Appellee,
v.
DAVID BRENT COSTIGAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jon A. Haddow and Farrell, Rosenblatt & Russell on brief for
appellant.
Jay P. McCloskey, United States Attorney, and F. Mark
Terison, Senior Litigation Counsel, on Motion for Summary
Disposition for appellee.
March 26, 2001
Per Curiam. The government has moved for summary
disposition in this direct criminal appeal filed by David
Brent Costigan. We grant the motion and summarily affirm
Costigan's conviction and sentence.
Costigan was convicted, after a bench trial, of
possession of a firearm after having been convicted of a
misdemeanor crime of domestic violence, involving his former
girlfriend, Maria Santos. See 18 U.S.C. § 922(g)(9).1 A
misdemeanor crime of domestic violence is defined as
an offense that -
(i) is a misdemeanor under Federal or
State law; and
1Section 922(g)(9) provides that:
It shall be unlawful for any person -
. . .
who has been convicted in any court of
a misdemeanor crime of domestic violence
. . .
to ship or transport in interstate or
foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has
been shipped or transported in interstate or
foreign commerce.
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(ii) has, as an element, the use or
attempted use of physical force, or the
threatened use of a deadly weapon,
committed by a current or former spouse,
parent, or guardian of the victim, by a
person with whom the victim shares a
child in common, by a person who is
cohabiting with or has cohabited with
the victim as a spouse, parent, or
guardian, or by a person similarly
situated to a spouse, parent, or
guardian of the victim.
18 U.S.C. § 921(a)(33)(A) (emphasis added). Costigan was
sentenced on October 17, 2000 to four months imprisonment
and remanded to custody at that time.2
At trial, Costigan stipulated that he had possessed
a rifle, which had traveled in interstate commerce, and that
he had two prior convictions for assaulting Santos, which
convictions were misdemeanors under Maine law and had, as an
element, the use or attempted use of physical force.
Costigan contested only that the convictions were for
domestic violence as required by § 922(g)(9) and defined by
§ 921(a)(33)(A)(ii). The issue at trial and Costigan's
primary issue on appeal is his contention that "cohabiting
... with the victim as a spouse," see § 921(a)(33)(A)(ii)
[quoted, supra], is unconstitutionally vague.
2Both the district court and this court denied Costigan's
request for release pending appeal.
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In United States v. Meade, 175 F.3d 215 (1st Cir.
1999), we rejected a vagueness challenge to § 922(g)(9),
reciting, that "[i]t is, after all, fair to presume that a
misdemeanant will know his relationship with his victim."
Id. at 222. The precise issue posed by the instant case,
however, was not present in Meade because Meade's prior
misdemeanor conviction had been for assaulting his spouse.
Costigan argues that living together as boyfriend and
girlfriend (which is how he describes his relationship with
Santos) does not give sufficient notice that he can not
possess a firearm if convicted of assaulting that
girlfriend. He also argues that his conduct did not
factually support the definition because he and Santos had
a stormy relationship in which marriage was not contemplated
and, he said, he only sporadically lived with Santos and, at
other times, lived at an apartment attached to his mother's
home.
We review de novo a contention that a criminal
statute is unconstitutionally vague. See United States v.
Bohai Trading Co., Inc., 45 F.3d 577, 580 (1st Cir. 1995).
And, we review a vagueness challenge, not involving First
Amendment freedoms, in light of the facts of the case at
hand. See United States v. Mazurie, 419 U.S. 544, 550
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(1975). With that framework in mind, we reject Costigan's
vagueness challenge.
Among the factors that the district court
considered in determining whether the government had proved
that Costigan and Santos were cohabiting as spouses were the
length of the relationship; shared residence as indicated by
spending the night and keeping one's belongings at the
residence; intimate relations; expectations of fidelity and
monogamy; shared household duties; regularly sharing meals
together; joint assumption of child care; providing
financial support; moving as a family unit; joint recreation
and socialization; and recognition of the live-in
relationship by family and friends as indicated by visits to
the residence. These factors are both relevant and
supported by the evidence.
Costigan met Maria Santos in October or November
1995. He moved in with her and her three children from
prior marriages soon thereafter and he and Santos shared a
sexual relationship. Costigan kept his clothes at their
home in a dresser purchased for that purpose. The couple
and Santos's children moved to an apartment that Costigan
found for them. The couple and the children ate together as
a family and had a regular Tuesday family pizza night.
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Costigan built a fence at the new apartment. He
participated in the discipline of the children, played with
them, gave them money, attended their school activities and
formed a bond with them. Costigan's relatives visited and
considered the couple as living together.
"The constitutional requirement of definiteness is
violated by a criminal statute that fails to give a person
of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute." See United States v.
Harriss, 347 U.S. 612, 617 (1954). A person of ordinary
intelligence would view the facts recited above as a
description of Costigan cohabiting with Santos as a spouse.
During the course of their relationship, Costigan assaulted
Santos in December 1995, was convicted of this assault in
February 1996, assaulted Santos again in June 1996, was
convicted of this second assault in September 1996, and
allegedly assaulted Santos a third time in October 1999. A
rifle was found in Costigan's possession at the time of the
October 1999 incident, leading to the firearm charge
underlying this appeal. In defining domestic violence, the
statutory phrase "cohabiting ... with the victim as a
spouse," gave Costigan fair notice that his conduct of
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possessing a firearm after his convictions for assaulting
Santos was forbidden.
Costigan also argued below and reiterates on appeal
his claim that § 922(g)(9) exceeds Congress's power under
the Commerce Clause because possession of a firearm by a
person convicted of a misdemeanor crime of domestic violence
is not economic activity and is without substantial impact
upon interstate commerce. Rather, he argues, curbing
domestic violence is properly assigned to state law. As
with the constitutional challenge based on vagueness, we
review de novo a statutory challenge based on the Commerce
Clause. See United States v. Cardoza, 129 F.3d 6, 10 (1st
Cir. 1997).
Costigan relies on United States v. Morrison, 120
S. Ct. 1740 (2000), in which the Court held that Congress
lacked authority to enact the Violence Against Women Act
("VAWA"), 42 U.S.C. § 13981, under the Commerce Clause. The
Court found that (i) gender-motivated crimes of violence are
not economic in nature, (ii) VAWA did not contain any
jurisdictional element, and (iii) the Congressional findings
regarding the impact on interstate commerce inappropriately
blurred the distinction between national and local
authority. Id. at 1751-54. Costigan argues that nothing in
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the statutory history of § 922(g)(9) shows that possession
of firearms by persons convicted of misdemeanor crimes of
domestic violence has any appreciable impact on interstate
commerce and, to the extent that § 922(g)(9) seeks to
prevent possession of firearms, it regulates purely local
activity.
Section 922(g)(9) is unlike the VAWA. Section
922(g)(9) is subject to an interstate jurisdictional
requirement in that the firearm must have traveled in
interstate commerce. Post-Morrison, courts have uniformly
held that Morrison does not affect the conclusion that §
922(g) is within Congressional authority under the Commerce
Clause. See, e.g., United States v. Dorris, 236 F.3d 582,
585-86 (10th Cir. 2000) (reviewing § 922(g)(1)); United
States v. Napier, 233 F.3d 394, 401-02 (6th Cir. 2000)
(reviewing § 922(g)(8)); 3 United States v. Jones, 231 F.3d
508, 514-15 (9th Cir. 2000) (reviewing § 922(g)(8)); United
States v. Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000)
(reviewing § 922(g)(1)), cert. denied, 121 S. Ct. 1145(2001). Apart from the express jurisdictional requirement
3Section 922(g)(8) is similar to § 922(g)(9) in that sub-
section (8) prohibits a person who is subject to a domestic
violence court order from possessing a firearm that has traveled
in interstate commerce.
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that the firearm have traveled in interstate commerce, the
Napier and the Jones courts distinguished Morrison by the
nature of the subject matter of the statutes involved. The
VAWA regulated a purely intrastate non-commercial activity,
while § 922(g)(8) regulates the possession of firearms, a
product of interstate commerce. United States v. Napier,
233 F.3d at 401-02; United States v. Jones, 231 F.3d at 514-
15. Costigan does not even mention these post-Morrison
cases, much less distinguish them. We reject Costigan's
Commerce Clause challenge to § 922(g)(9).
Finally, Costigan contends that the district court
abused its discretion in imposing a three year term of
supervised release. See U.S.S.G. §5D1.1(b) (permitting, but
not requiring, the court to order a term of supervised
release to follow imprisonment when a sentence of one year
or less is imposed). In deciding whether to impose a term
of supervised release, the court "may consider the need for
a term of supervised release to facilitate the reintegration
of the defendant into the community; to enforce a fine,
restitution order, or other condition; or to fulfill any
other purpose authorized by statute." U.S.S.G. §5D1.1,
comment. (n.2).
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Costigan did not object below to the imposition of
a term of supervised release. We, therefore, review this
claim for plain error. See United States v. Paradis, 219
F.3d 22, 25 (1st Cir. 2000). In fashion similar to
defendant Paradis, see id., Costigan does little more than
simply argue that three years of supervised release is
unnecessary. At sentencing, the district court described
Costigan as exactly the sort of person that Congress was
concerned with in enacting § 922(g)(9) and one who had not
taken responsibility for his life. It also required, as an
additional condition of supervised release, that Costigan
participate in a program of mental health treatment,
including a batterer's intervention program. These
determinations, fully supported by the evidence, attest to
the need to facilitate Costigan's reintegration into the
community. See U.S.S.G. §5D.1.1, comment. (n.2). They also
establish that Costigan has failed to demonstrate "an
obvious and clear error under law that seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings." United States v. Paradis, 219 F.3d at 25(citation omitted).
The judgment of the district court is summarily
affirmed. Loc. R. 27(c).
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