Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 10-03-2021
Case Style:
United States of America v. JOHN ERNEST DADE
Case Number: 19-35172
Judge: Jennifer Choe-Groves
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Syrena Case Hargrove (argued), Assistant United States
Attorney; Bart M. Davis, United States Attorney; United
States Attorney’s Office
Defendant's Attorney:
Description:
San Francisco, CA - Criminal defense lawyer represented defendant with a motion to vacate, set aside, or correct his sentence or interstate domestic violence and use of a firearm in relation to a violent crime charge.
In 2002, a grand jury returned a second superseding
indictment charging Dade with eight counts: threatening
interstate communications, in violation of 18 U.S.C.
§ 875(c) (Count 1); interstate stalking, in violation of
18 U.S.C. § 2261A(2)(B)(i) (Count 2); interstate domestic
violence, in violation of 18 U.S.C. § 2261(a)(1) (Counts 3,
5, and 6)1; brandishing a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and
(C)(i) (Counts 4 and 7); and witness tampering, in violation
of 18 U.S.C. § 1512(b)(2)(A) and (b)(3) (Count 8). The
charges stemmed from Dade’s actions against Teresa Aikele,
his former girlfriend and the mother of their son.
Dade proceeded to a jury trial. Viewed in the light most
favorable to the verdict, the trial evidence established the
following regarding the events that form the basis of Count
6 (interstate domestic violence). On October 20, 2000,
Aikele received a call from Dade from her own home phone
while she was at work. He still had a key to her house and
had let himself in. When Aikele got home, he was still there.
Aikele testified that he wanted her to go out with him and
have dinner and go dancing. When she refused, he pulled
her off the loveseat on which she was sitting and threw her
onto the floor. He started punching her in the stomach and
took her pants off. She testified that he penetrated her with
his fingers. He then grabbed her hair and dragged her into
1 Counts 3 and 6 alleged that Dade committed interstate domestic
violence, in violation of § 2261(a)(1), on two different occasions.
Section 2261(a)(1) was amended in the interim between the alleged
conduct underlying Counts 3 and 6. Compare 18 U.S.C. § 2261(a)(1)
(1996) with 18 U.S.C. § 2261(a)(1) (2000). The jury instruction for
Counts 3 and 6 were therefore different—Count 6 requiring the jury to
find an additional element that Dade caused “bodily injury” to the victim.
UNITED STATES V. DADE 5
the bedroom. In the bedroom, he handcuffed her, pulled her
shirt over her head, and began biting her on her breast, telling
her that they were both going to die. He put a gun to her face
and told her the only way to get out of the situation was to
kill her and himself. Eventually he calmed down and undid
the handcuffs on Aikele so she could sleep. The next
morning, she convinced him that she would not call the
police if he left, and he did.
Counts 3 (interstate domestic violence) and 4
(brandishing a firearm during the crime of interstate
domestic violence alleged in Count 3) were based on a
subsequent attack on Aikele four months later. On February
18, 2001 around 3:00 a.m., Dade broke into Aikele’s house
by smashing a pane of glass, reaching in, and unlocking the
door. Dade then entered Aikele’s bedroom, grabbed her, and
said, “See what you make me do? See what lengths you
make me go to see you? I just want to see you.” Aikele
testified that he was “really angry” and grabbed her by the
hair and slapped her in the face. He pulled her clothes off
and put a gun to her face. He pushed her to the bed and
called her demeaning names and said she was going to “get
him off.” Aikele testified that he penetrated her with his
fingers and performed oral sex on her against her will. He
slept in another room of Aikele’s house for the rest of the
night. The next morning, Aikele asked Dade if she could go
to church, and he refused saying that she was going to tell
someone about what he had done. He took her clothes off
again and penetrated her with his fingers and performed oral
sex on her against her will. Aikele was asked why she did
not contact the police when Dade was sleeping in the other
room. She responded that she “didn’t dare” because he was
angry that she had him arrested on a prior occasion and had
told her “if you ever have me arrested, I’ll kill you.”
6 UNITED STATES V. DADE
At the close of trial, the district court instructed the jurors
that, to find Dade guilty of either count of interstate domestic
violence, they would need to find that Dade traveled in
interstate commerce to commit, or attempt to commit, a
“crime of violence against Teresa Aikele.” The district court
instructed the jury that, as a matter of law, three Idaho state
offenses—assault, battery, and burglary—were crimes of
violence. Therefore, it further instructed the jury that the
government must prove that Dade committed either Idaho
assault, battery, or burglary in connection with the attacks on
Aikele, with each member of the jury “agreeing on which of
these crimes the defendant committed.” The district court
then provided the jurors with instructions that outlined the
elements of each predicate offense as they applied to Dade’s
case:
An “assault” under Idaho law is committed
when a person:
(1) unlawfully attempts, with apparent
ability, to commit a violent injury on the
person or another; or
(2) intentionally and unlawfully threatens by
word or act to do violence to the person
of another, with an apparent ability to do
so, and does some act which creates a
well-founded fear in the other person that
such violence is imminent.
A “battery” under Idaho law is committed
when a person:
(1) wilfully [sic] and unlawfully uses force or
violence upon the person of another; or
UNITED STATES V. DADE 7
(2) actually, intentionally, and unlawfully
touches or strikes another person against
the will of the other; or
(3) unlawfully and intentionally causes
bodily harm to an individual.
“Burglary” under Idaho law is committed
when a person:
(1) enters the residence of another, and
(2) at the time entry is made, that person has
the specific intent to commit an assault or
battery.
Additionally, the district court instructed the jurors that, to
find Dade guilty of violating § 924(c), they would need to
find that Dade brandished a firearm during and in relation to
the “crime of violence” as charged in Count 3 (interstate
domestic violence).
At the conclusion of Dade’s trial, the jury convicted
Dade of five of the eight counts: threatening interstate
communications (Count 1), interstate stalking (Count 2),
interstate domestic violence (Counts 3 and 6) (“§ 2261”),
and use of a firearm in relation to a crime of violence (Count
4) (“§ 924(c)”). The jury’s verdict did not expressly specify
which predicate Idaho offense it relied on to find Dade guilty
of the § 2261 and § 924(c) counts. The district court
sentenced Dade to an aggregate term of 336 months’
imprisonment to be followed by a 5-year term of supervised
release.
Dade appealed and this court affirmed his convictions,
but vacated and remanded his sentence in light of United
8 UNITED STATES V. DADE
States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en
banc). See United States v. Dade, 136 F. App’x 973, 975
(9th Cir. 2005). On remand, the district court imposed the
same 336-month aggregate sentence.
In 2009, Dade filed his first 28 U.S.C. § 2255 motion. In
2011, the district court dismissed Dade’s § 2255 motion on
the merits and denied a certificate of appealability. See
United States v. Dade, Nos. 4:09-cv-00512-BLW & 4:01-cr00196-BLW, 2011 WL 6301123, at *15–16 (D. Idaho Dec.
16, 2011).
In 2015, the Supreme Court in Johnson v. United States
(“Johnson II”), 576 U.S. 591 (2015), held that the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague
because it left “grave uncertainty” about both “how to
estimate the risk posed by a crime” and “how much risk it
takes for a crime to qualify as a violent felony.”2 Johnson
II, 576 U.S. at 597–98. Three years later, in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court
extended its reasoning in Johnson II to the definition of
“crime of violence” found in 18 U.S.C. § 16(b). Dimaya,
138 S. Ct. at 1216. The Court concluded that § 16(b) is
unconstitutionally vague because it creates “more
unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. (quoting Johnson II, 576 U.S. at 598).
Following the Court’s decision in Johnson II, Dade
sought authorization from this court to file a second or
successive § 2255 motion in the district court. This court
2 In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme
Court held that the constitutional rule announced in Johnson II applies
retroactively to cases on collateral review. Welch, 136 S. Ct. at 1268.
UNITED STATES V. DADE 9
granted authorization, and Dade filed the § 2255 motion
giving rise to the instant appeal. In the motion, he
challenged his § 2261 convictions, asserting that they must
be vacated because the offenses that served as the predicate
crimes of violence—Idaho burglary, battery, and assault—
no longer qualify as categorical crimes of violence under
Johnson II and Dimaya.
3 Specifically, he argued that Idaho
burglary is a crime of violence only under 18 U.S.C. § 16(b),
which was facially invalidated in Dimaya, 138 S. Ct. at 1216.
Because the jury had not specified which of the three Idaho
offenses it had relied on in reaching its verdict, Dade argued
that the § 2261 convictions could have relied on an invalid
burglary predicate and that therefore his convictions were
unlawful under Dimaya. Dade also challenged his § 924(c)
conviction, asserting that the § 924(c) conviction must also
be vacated because it was predicated on his now invalid
§ 2261 conviction as charged in Count 3.
The district court denied Dade’s second § 2255 motion.
Applying United States v. Geozos, 870 F.3d 890 (9th Cir.
2017), overruled on other grounds by Stokeling v. United
States, 139 S. Ct. 544 (2019), as recognized in Ward v.
United States, 936 F.3d 914, 918 (9th Cir. 2019), the district
court concluded that Dade’s claims did not satisfy the socalled gatekeeping provision set forth in § 2255(h)(2),
because the record made clear that Dade’s convictions did
not rest on § 16(b) and therefore his claims did not actually
“rely on” Dimaya. Citing both the jury instructions and
3 The Supreme Court decided Dimaya while Dade’s second § 2255
motion was pending in the district court. The parties supplemented their
briefing to analyze and apply Dimaya to their arguments. Because
Dimaya is an extension of Johnson II, and Dimaya is directly applicable
to the statute at issue, 18 U.S.C. § 16, we will address the parties’
arguments only as they relate to Dimaya.
10 UNITED STATES V. DADE
evidence introduced at trial, the district court held that
Dade’s § 2261 convictions clearly relied on a valid legal
ground—§ 16(a)—for categorizing the three predicate
crimes of violence because the jury instructions required the
jury to find that Dade used or attempted to use violent,
physical force for Idaho assault, battery, and burglary.
Because Dade’s § 924(c) conviction is predicated on his
§ 2261 conviction as charged in Count 3, the district court
applied the same reasoning and concluded that Dade’s
challenge to his § 924(c) conviction also did not rely on
Dimaya. The district court granted Dade a certificate of
appealability. This timely appeal followed.
II.
We review de novo a district court’s decision to deny a
§ 2255 motion. United States v. Reves, 774 F.3d 562, 564
(9th Cir. 2014).
The definition of “crime of violence” in 18 U.S.C. § 16
contains two parts: subsection (a), which is known as the
force or elements clause, and subsection (b), which is known
as the residual clause. These subsections define a crime of
violence as:
(a) an offense that has as an element the use,
attempted use, or threatened use of
physical force against the person or
property of another, or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk
that physical force against the person or
UNITED STATES V. DADE 11
property of another may be used in the
course of committing the offense.
18 U.S.C. § 16.
As we briefly mentioned, in Dimaya, the Supreme Court
struck down the residual clause (“§ 16(b)”) as
unconstitutionally vague. Dimaya, 138 S. Ct. at 1216. In
doing so, the Court concluded that § 16(b) is
unconstitutionally vague because, similar to the ACCA’s
residual clause declared unconstitutional in Johnson II, it
creates “more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id. (quoting Johnson II, 576 U.S.
at 598).
The government contends that we need not address
Dade’s Dimaya-based challenges to his § 2261 and § 924(c)
convictions because Dade has not demonstrated that his
claims “rely on” the constitutional rule announced in
Dimaya, and thus, his claims do not satisfy the gatekeeping
requirement of § 2255(h)(2). We agree.
To file a second or successive § 2255 motion, a movant
must show that his claim relies on “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2). “A claim necessarily
‘relies on’ a rule of constitutional law if the claim is that the
movant was sentenced in violation of that constitutional
rule.” Geozos, 870 F.3d at 895. In Geozos, we clarified how
to determine whether a movant was sentenced in violation of
a new constitutional rule for purposes of satisfying
§ 2255(h)(2). See id. at 895–96. There, we recognized that
there may be instances in which a court has specified which
of the two clauses (i.e., the force clause or the residual
clause) it has invoked in classifying a particular offense as a
12 UNITED STATES V. DADE
crime of violence, which would then allow us to easily
determine whether a conviction or sentence rested on a valid
legal theory. Id. at 895. However, even where the record
lacks such an explicit statement, it nonetheless may be
possible to determine that the district court did not rely on
the residual clause by looking to the relevant background
legal environment at the time of trial. See id. at 896. If the
record and legal background support that the district court
did not rely on the residual clause when categorizing an
offense as a crime of violence, then a movant’s claim does
not “rely on” the new constitutional rule announced. Id.
Here, the district judge made the determination and
instructed the jury that each Idaho predicate offense was, as
a matter of law, a crime of violence. By convicting Dade of
the § 2261 and § 924(c) counts, the jury concluded that Dade
had indeed committed a crime of violence. However, the
verdict did not expressly specify on which predicate the jury
relied to make that determination. Therefore, before
determining whether the district court relied on § 16(a) or
§ 16(b) to conclude that the Idaho predicate offenses were
crimes of violence, we must first determine whether the
record as a whole makes clear which predicate offenses the
jury relied on to convict Dade of violating § 2261 and
§ 924(c). Although the jury did not return a special verdict
indicating on which predicates it necessarily found, we can
narrow the predicate offenses the jury necessarily relied
upon by reviewing the trial record.
We first address Count 6, which required the jury to find
that Dade committed either Idaho assault, battery, or
burglary, and that as a result of committing one of those
offenses, Dade “thereby cause[d] bodily injury” to Aikele.
18 U.S.C. § 2261(a)(1) (1996) (emphasis added). The jury’s
guilty verdict on Count 6 validates that the jury concluded
UNITED STATES V. DADE 13
that the crime of violence Dade committed “cause[d] bodily
injury.” Id. On this record, the only Idaho predicate that
could have caused bodily injury is Idaho battery. Even
assuming that the jury agreed that Dade committed Idaho
burglary or assault, the record reflects that the jury
necessarily also found the elements of Idaho battery when it
concluded that Dade’s crime of violence “cause[d] bodily
injury” to Aikele. Therefore, we can conclude that Count 6
necessarily rests on Idaho battery.
We next address Counts 3 and 4. The jury instruction for
Count 3 was not identical to that of Count 6 because § 2261,
the interstate domestic violence statute, was amended in the
interim between the conduct underlying each count. Unlike
Count 6, the jury instruction for Count 3 did not include the
bodily injury element. On this record, we cannot conclude,
merely from the conviction on Count 3, which predicate the
jury necessarily relied on to convict Dade for that count. But
the jury also convicted Dade of Count 4—the § 924(c)
offense—which was predicated on Dade committing a crime
of violence as charged in Count 3. Thus, in order to convict
Dade of Count 4, the jury was required to find that Dade
“brandished” a firearm “during and in relation to” the crime
as charged in Count 3. “[T]he term ‘brandish’ means, with
respect to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another
person, in order to intimidate that person, regardless of
whether the firearm is directly visible to that person.”
18 U.S.C. § 924(c)(4). On this record, the finding that Dade
brandished a firearm during a crime of violence, as charged
in Count 3, must be based on Dade displaying the firearm,
or making its presence known, in front of Aikele, after he
had entered her home. Therefore, the predicate crime of
violence in Counts 3 and 4 could not have been Idaho
burglary which, under Idaho law, is complete upon entry, see
14 UNITED STATES V. DADE
State v. Rawlings, 363 P.3d 339, 342 (Idaho 2015).
Accordingly, we can conclude that the jury must have
necessarily relied on either Idaho assault or battery to
convict Dade of Counts 3 and 4.
We now must determine whether the district court’s
finding that the implicated predicate offenses—Idaho assault
and battery—relied on the force clause of § 16(a) or the
residual clause in § 16(b). We consider both the record
before the district court and the relevant background legal
environment at the time of Dade’s trial. See Geozos,
870 F.3d at 896. The record confirms that the district court
relied on § 16(a) to conclude that Idaho assault and battery
were crimes of violence. Prior to trial, the government
submitted a trial memorandum to the district court, stating
that Idaho assault and battery were crimes of violence under
§ 16(a) because the offenses had as an element the use,
attempted use, or threatened use of physical force against the
person or property of another. Dade neither filed a trial brief
nor objected to the government’s arguments in its trial brief.
This supports the view that the district court did not rely on
§ 16(b) to conclude that Idaho assault and battery are
categorical crimes of violence.
Moreover, our caselaw instructs us to examine the
relevant background legal environment to determine
whether there is any controlling law from the time Dade
went to trial that would indicate whether the district court
relied on something other than § 16(b). See Geozos,
870 F.3d at 895–96. The relevant background legal
environment further confirms that the district court’s
conclusion that Idaho assault and battery were crimes of
violence did not rest on § 16(b). The residual clause, by its
terms, applied only to an offense “that is a felony.” 18 U.S.C.
§ 16(b) (emphasis added). In order to be classified as a
UNITED STATES V. DADE 15
felony, a crime must be punishable by imprisonment for
more than one year. See, e.g., Moncrieffe v. Holder,
569 U.S. 184, 188 (2013). But under Idaho law, at the time
of Dade’s trial, assault was punishable by imprisonment in
the county jail for up to three months, see Idaho Code § 18-
902, and battery was punishable by imprisonment in the
county jail for up to six months, see id. § 18-904. Under
Idaho law, neither battery nor assault is a felony.
Furthermore, Idaho assault and battery do not meet the
federal definition of a felony. See Moncrieffe, 569 U.S.
at 188. Therefore, under the relevant legal background, the
district court could not have relied on § 16(b) to classify
Idaho assault and battery as crimes of violence.
The outcome might have been different had we not been
able to eliminate Idaho burglary as the basis for the jury’s
verdict on Counts 3, 4, and 6, because the record confirms
that the district court relied on the residual clause to
categorize Idaho burglary as a crime of violence. In its pretrial memorandum, the government stated that burglary—
unlike assault and battery—was categorized as a crime of
violence under the residual clause. Just as that submission
suggests that the district court likely relied on the force
clause to determine that assault and battery are crimes of
violence, see supra p. *14, it likewise supports concluding
that the district court may have relied on the residual clause
to categorize burglary as a crime of violence. Nor does the
controlling law at the time of Dade’s trial establish
otherwise. See Geozos, 870 F.3d at 896. As the government
concedes, at the time of Dade’s trial, we had recognized that
similar statutory residential burglary offenses were
categorical crimes of violence under the residual clause. See
United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.
2000); United States v. Becker, 919 F.2d 568, 571–72 (9th
Cir. 1990), superseded by statute as stated in United States
16 UNITED STATES V. DADE
v. Ramos-Medina, 706 F.3d 932, 937 (9th Cir. 2013). Based
on the record and legal background, we must therefore
presume that the district court relied on the residual clause,
not the force clause, to categorize Idaho burglary as a crime
of violence. See Geozos, 870 F.3d at 896. But because the
jury’s verdict here did not rest on the Idaho burglary
predicate, it is clear that Dade’s conviction does not rest on
the residual clause.
The record and relevant background legal environment
thus confirm that the district court’s determination that Idaho
assault and battery qualify as crimes of violence did not rest
on § 16(b). Because his § 2261 and § 924(c) convictions did
not rely on § 16(b), Dade’s challenges to those convictions
do not “rely on” Dimaya. See Geozos, 870 F.3d at 895–96.
Dade’s second § 2255 motion, therefore, does not meet the
gatekeeping requirements for a second or successive motion.
28 U.S.C. § 2255(h)(2). Because Dade has not satisfied the
gatekeeping requirement set forth in § 2255(h)(2), we need
not reach the question whether any Dimaya error is harmless.
See Geozos, 870 F.3d at 897
Outcome: Dade has not demonstrated that he was convicted and
sentenced in violation of Dimaya and, therefore, fails to
satisfy the gatekeeping requirement set forth in 28 U.S.C.
§ 2255(h)(2). For the foregoing reasons, we affirm the
district court’s denial of Dade’s § 2255 motion.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: