United States v. Nobriga ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10169
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00209-HG
FRED NOBRIGA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted April 8, 2005
Submission Withdrawn January 3, 2006
Resubmitted December 29, 2006
Pasadena, California
Filed December 29, 2006
Before: Harry Pregerson,* Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.
Per Curiam Opinion
*Judge Harry Pregerson was drawn to replace Judge James M. Fitzger-
ald, Senior United States District Judge for the District of Alaska, who sat
by designation. Judge Pregerson has read the briefs, reviewed the record,
and listened to the tape of oral argument held on April 8, 2005.
20057
UNITED STATES v. NOBRIGA 20059
COUNSEL
De Anna S. Dotson, Kapolei, Hawaii, for the defendant-
appellant.
Edward H. Kubo, Jr., United States Attorney, and Wes Reber
Porter, Assistant United States Attorney, District of Hawaii,
Honolulu, Hawaii, for the plaintiff-appellee.
20060 UNITED STATES v. NOBRIGA
OPINION
PER CURIAM:
Fred Nobriga appeals the district court’s denial of his
motion to dismiss the indictment. The indictment charged him
with violating 18 U.S.C. § 922(g)(9) by possessing a firearm
after having been previously convicted of a “misdemeanor
crime of domestic violence,” as defined by 18 U.S.C.
§ 921(a)(33)(A)(ii). We reverse the district court’s denial of
Nobriga’s motion to dismiss.
I.
Nobriga was indicted in 2003 by a federal grand jury in
Hawaii for being a person previously convicted of a “misde-
meanor crime of domestic violence” in possession of a fire-
arm. Section 921(a)(33)(A)(ii) defines that term as any
misdemeanor that:
has, as an element, the use or attempted use of physi-
cal 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 simi-
larly situated to a spouse, parent, or guardian of the
victim.
The predicate offense at issue was Nobriga’s conviction for
Abuse of a Family or Household Member (“AFHM”), in vio-
lation of section 709-906(1) of the Hawaii Revised Statutes.
Nobriga had pleaded no contest to AFHM in a Hawaii state
court, and the court found Nobriga guilty “as charged.”
Nobriga moved to dismiss the federal indictment, claiming
that his underlying AFHM conviction was not for a “misde-
UNITED STATES v. NOBRIGA 20061
meanor crime of domestic violence,” and that 18 U.S.C.
§ 922(g)(9) was therefore inapplicable. The district court held
that the Hawaii statute was not categorically a “misdemeanor
crime of domestic violence,” but that the charging documents,
together with the judgment, demonstrated that Nobriga
had pleaded to a “misdemeanor crime of domestic violence”
as defined by 18 U.S.C. § 921(a)(33)(A).
After the district court denied Nobriga’s motion to dismiss,
Nobriga entered into a plea agreement with the government,
reserving the right to appeal the district court’s denial of his
motion to dismiss. The district court sentenced Nobriga to
twenty-seven months’ imprisonment, three years of super-
vised release, and a “special assessment of $100.” Nobriga
timely appeals.
II.
On appeal, Nobriga argues that neither his conviction under
the Hawaii statute, standing alone, nor the judicially notice-
able facts establish that Nobriga and the victim of his Hawaii
offense had the domestic relationship required by
§ 921(a)(33)(A)(ii). His challenge is controlled by our deci-
sion in United States v. Belless, 338 F.3d 1063 (9th Cir.
2003).
[1] In Belless, we held that “[§ 922(g)(9)] 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.” Id. at 1066. In reaching this conclu-
sion, Belless joined “all seven of our sister circuits to have
spoken to the issue.” Id. (citing White v. Dep’t of Justice, 328
F.3d 1361 (Fed. Cir. 2003); United States v. Shelton, 325 F.3d
553 (5th Cir. 2003); United States v. Kavoukian, 315 F.3d 139
(2d Cir. 2002); United States v. Barnes, 295 F.3d 1354 (D.C.
Cir. 2002); United States v. Chavez, 204 F.3d 1305 (11th Cir.
20062 UNITED STATES v. NOBRIGA
2000); United States v. Meade, 175 F.3d 215 (1st Cir. 1999);
United States v. Smith, 171 F.3d 617 (8th Cir. 1999)).
[2] Thus, under Belless, the domestic relationship element
need not be an element of the predicate offense. Rather, it is
an element of the federal offense under § 922(g)(9), to be
proven at trial. Cf. Kavoukian, 315 F.3d at 145 (noting that
the domestic relationship element is an element of the federal
crime). As the government could have proven the necessary
domestic relationship at trial, the mismatch between the
Hawaii and federal domestic violence statutes is not a basis
for invalidating the indictment.1 See United States v. Jensen,
93 F.3d 667, 669 (9th Cir. 1996) (“[A] defendant may not
properly challenge an indictment, sufficient on its face, on the
ground that the allegations are not supported by adequate evi-
dence.” (internal quotation marks omitted)).2
III.
Nobriga also challenges the district court’s denial of his
motion to dismiss the indictment on the basis that his AFHM
conviction did not involve the “violent use of force,” as
required under § 921(a)(33)(A)(ii). See Belless, 338 F.3d at
1068 (holding that “[t]he phrase ‘physical force’ in the federal
definition at 18 U.S.C. § 921(a)(33)(A)(ii) means the violent
use of force against the body of another individual”).
1
Nobriga’s appeal is restricted to the denial of the motion to dismiss the
indictment, so we do not reach any question concerning the validity of the
plea, including whether the factual basis established with regard to the req-
uisite domestic relationship was adequate. See Fed. R. Crim. P. 11(b)(3).
2
Kavoukian suggested that an indictment could be insufficient if it failed
specifically to allege the domestic relationship element. Kavoukian, 315
F.3d at 145. We do not decide whether the indictment was insufficient on
this basis, however, because, as noted, Nobriga did not raise this question.
See United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an
indictment do not deprive a court of its power to adjudicate a case.”);
United States v. Velasco-Medina, 305 F.3d 839, 845-46 (9th Cir. 2002)
(holding that post-Cotton, a district court does not lack jurisdiction when
an indictment fails to allege an element of the federal offense).
UNITED STATES v. NOBRIGA 20063
[3] Section 709-906(1) of the Hawaii Revised Statutes does
not necessarily require a “violent use of force.” In addition to
making it unlawful “to physically abuse a family or household
member,” the statute also proscribes “refus[ing] compliance
with the lawful order of a police officer,” an offense that spec-
ifies no use of force, violent or otherwise. Under the modified
categorical approach derived from Taylor v. United States,
495 U.S. 575, 602 (1990), however, the record establishes that
Nobriga necessarily pleaded guilty to a “violent use of force.”
As the district court concluded, the charging papers and the
judgment of conviction make clear that Nobriga pleaded
guilty to “physically abus[ing] a family or household mem-
ber,” not to “refus[ing] compliance with a lawful order of a
police officer.”
[4] Still, Hawaii law recognizes that section 709-906(1)’s
“physically abuse” prong can be satisfied with a reckless, as
opposed to intentional, use of force. See State v. Eastman, 913
P.2d 57, 66 (Haw. 1996); see also State v. Miller, 98 P.3d
265, 266 n.1 (Haw. Ct. App. 2004). We recently held that
crimes that involve the reckless use of force cannot be consid-
ered crimes of violence. See Fernandez-Ruiz v. Gonzales, No.
03-74533, slip op. 17851, 17868 (9th Cir. Oct. 26, 2006).
Fernandez-Ruiz so held in the context of 18 U.S.C. § 16(a),
which defines a “crime of violence” as “an offense that has
as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 18
U.S.C. § 16(a). Section 921(33)(A)(ii) does not use precisely
the same language as § 16(a); in particular, the former provi-
sion does not contain the words “against the person or prop-
erty of another.” Nevertheless, our caselaw has interpreted
§ 921(33)(A)(ii)’s “physical force” language as requiring “the
violent use of force against the body of another individual,”
see Belless, 338 F.3d at 1068 (emphasis added), as have all
the other circuits that have addressed the question, see United
States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006) (writ-
ing that the plain meaning of “physical force,” for purposes
of § 921(33)(A)(ii), is “[p]ower, violence, or pressure directed
20064 UNITED STATES v. NOBRIGA
against another person’s body); United States v. Rogers, 371
F.3d 1225, 1228-29 (10th Cir. 2004) (writing that a prior con-
viction under § 921(33)(A)(ii) demonstrates a “propensity for
the use of physical violence against others”); United States v.
Nason, 269 F.3d 10, 16 (1st Cir. 2001) (characterizing “physi-
cal force,” for purposes of § 921(33)(A)(ii), as “power, vio-
lence, or pressure directed against another person’s body”).
The holding of Fernandez-Ruiz, therefore, logically extends
to the interpretation of § 921(33)(A)(ii).
[5] Because nothing in the record establishes that Nobriga
acted with anything other than recklessness, his motion to dis-
miss the indictment should have been granted.
REVERSED.