United States v. Dion

37 F.4th 31

UNITED STATES of America, Appellee,

v.Nelson Jean DION, Defendant, Appellant.

No. 21-1411

United States Court of Appeals, First Circuit.

June 16, 2022

David J. Bobrow, with whom Bedard & Bobrow, P.C. was on brief, for appellant.

Mahogane Denea Reed, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, were on brief, for appellee.

Before Barron, Chief Judge, Selya and Howard, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Nelson Jean Dion challenges his conviction for interstate violation of a protection order under 18 U.S.C. § 2262(a)(1) — an offense created by the Violence Against Women Act of 1994 (VAWA), Pub. L. 103-322, § 40001, 108 Stat. 1796, 1902 (1994). His appeal presents a question of first impression as to whether the no-contact and stay-away provisions in a conditional release order — requiring a defendant to refrain from contact with the victim of the alleged crime and to stay away from locations frequented by that victim — may constitute a "protection order" as defined by the VAWA. See 18 U.S.C. § 2266(5). We answer this question in the affirmative and uphold the district court's denial of the defendant's motion to dismiss. And as a result, we uphold the defendant's conviction.

I

We briefly rehearse the relevant facts and travel of the case. In April of 2016, local authorities arrested the defendant and charged him with felony aggravated assault under Maine law. See Me. Rev. Stat. Ann. tit. 17-A, § 208(1)(A). The offense involved the defendant's long-term girlfriend, T.N. (who had reported to the police that she had been physically assaulted). Following a bail hearing, a state-court judge issued a conditional release order. This order was issued on a standardized form, which included a no-contact provision that identified T.N. and contained marks indicating that the defendant was ordered to stay away from certain locations (such as T.N.'s residence). Although the box next to the no-contact provision was left unchecked, the executed version of the defendant's bail-bond agreement reflects that he agreed to cease communication with T.N. and stay away from the locations identified in the conditional release order throughout the period of his conditional release.

The assault charge was eventually dismissed due to T.N.'s untimely death. Three years later, though, a federal grand jury sitting in the District of Maine returned an indictment that charged the defendant — in two counts — with interstate violation of a protection order. See 18 U.S.C. § 2262(a)(1). The indictment alleged that between April and June of 2016, the defendant traveled back and forth between Maine and New Hampshire, intending to have direct contact and communication with, and be in physical proximity to, T.N., in violation of a protection order.

The defendant moved to dismiss the indictment on two grounds. See Fed. R. Crim. P. 12(b). First, he claimed that the conditional release order was not a "protection order" as defined in 18 U.S.C. § 2266(5). Second, he claimed that the charges against him abridged the Due Process Clause. See U.S. Const. amend. V.

The district court rejected both claims. See United States v. Dion, No. 19-176, 2020 WL 1450441, at *3 (D. Me. Mar. 25, 2020). Interpreting the statutory definition of "protection order" as "clearly encompass[ing] the bail order" based on the "plain language" of the statute, the district court jettisoned the defendant's first claim. Id. at *1-2. The court then found the defendant's constitutional claim wanting. See id. at *2-3.

The defendant subsequently entered a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving the right to appeal from the denial of his motion to dismiss. The district court sentenced him to concurrent thirty-one-month terms of immurement on the charged counts. This timely appeal followed.

II

In this court, the defendant does not break new ground but, rather, reprises arguments that he made below. To set the stage for our consideration of those arguments, we note that Federal Rule of Criminal Procedure 12(b)(1) allows for pretrial consideration of motions that are based on "any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Typically, when such a motion seeks to dismiss an indictment, its resolution will turn on pure questions of law regarding the sufficiency of the indictment's allegations. See United States v. Brissette, 919 F.3d 670, 675 (1st Cir. 2019). Sometimes, however, resolving such a motion may require addressing facts that are not alleged in the indictment. In that event, a court still may resolve a "pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts." United States v. Musso, 914 F.3d 26, 29-30 (1st Cir. 2019) (quoting United States v. Weaver, 659 F.3d 353, 355 n* (4th Cir. 2011) ).

With this preface in place, we turn to the defendant's asseverational array. Our standard of review is straightforward. As the facts necessary to resolve this appeal are undisputed, we address only questions of law, which engender de novo review. See id. at 30 ; United States v. Therrien, 847 F.3d 9, 14 (1st Cir. 2017).

A

Before we grapple with the defendant's main contentions, we pause to address a subsidiary issue. The indictment charged the defendant with violating 18 U.S.C. § 2262(a)(1), which criminalizes, in relevant part, "travel[ ] in interstate or foreign commerce ... with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person ... and subsequent[ ] engage[ment] in such conduct." Here, the defendant is alleged to have violated the no-contact and stay-away provisions (collectively, the No-Contact Order) in the conditional release order.

Maine law authorizes courts to "order the pretrial release" of a defendant "on a condition or combination of conditions." Me. Rev. Stat. Ann. tit. 15, § 1026(3). Although denominated "conditions of release," such provisions are full-fledged orders of the court: Maine law makes it a crime to "violate[ ] a condition of release." Id. § 1092(1). The defendant does not dispute that such conditions of release are generally binding. He does, however, suggest that the No-Contact Order imposed in his case was not in force. This suggestion is based upon what appears to be a scrivener's error: an unchecked box next to the printed no-contact provision.

We conclude that the defendant's suggestion is specious. The conditional release order indicates that it was intended to be "attached" to the bail bond, which itself contains the defendant's signed agreement to refrain from contact with T.N. Moreover, the defendant concedes in his brief that he was advised of the no-contact requirement during his bail hearing. It is, therefore, abundantly clear that the defendant was aware of the requirement and by no means prejudiced by any missing checkmark in the conditional release order. Cf. United States v. Merced-García, 24 F.4th 76, 80 (1st Cir. 2022) (finding on plain error review that defendant was not prejudiced by unsigned section of plea agreement in part because agreement itself was signed); United States v. Meléndez-Santana, 353 F.3d 93, 100 (1st Cir. 2003) (concluding that conditions stated orally at sentencing control even though conditions of release in written sentencing order differ materially), overruled in part on other grounds by United States v. Padilla, 415 F.3d 211, 215 (1st Cir. 2005) (en banc). Consequently, we continue our analysis secure in the knowledge that the No-Contact Order prohibited the defendant from communicating with T.N.

B

The defendant's principal challenge to the indictment rests on the premise that, as a matter of law, neither the conditional release order nor any part of it is a "protection order" within the meaning of 18 U.S.C. § 2262(a)(1). This premise is flawed and, thus, the defendant's challenge fails.

The term "protection order," as used in 18 U.S.C. § 2262(a)(1), takes the meaning provided in 18 U.S.C. § 2266 (the relevant "Definitions" provision of the VAWA). The defendant's challenge requires us to train the lens of our inquiry on whether the No-Contact Order satisfies the definition supplied in section 2266. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697 n.10, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (explaining that, where "Congress explicitly defined the operative term," a court must focus on the statutory definition). To the extent that any aspect of the statutory definition is unclear, a court may consider the ordinary meaning of the defined term. See United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; see also Bond v. United States, 572 U.S. 844, 861, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) ("In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition.").

Section 2266(5)'s definition of "protection order" encompasses two subsections. See 18 U.S.C. § 2266(5). The relevant subsection broadly defines a "protection order" as including

any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite

...