United States v. Howald

104 F.4th 732

UNITED STATES of America, Plaintiff - Appellee, v. John Russell HOWALD, Defendant - Appellant.

No. 23-1182

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 6, 2024 Seattle, Washington

Filed June 13, 2024

Appeal from the United States District Court for the District of Montana, Brian M. Morris, District Judge, Presiding, D.C. No. 6:21-cr-00004-BMM-1

Janea L. Lamar (argued) and Erin H. Flynn, Attorneys; Kristen Clarke, Assistant Attorney General; United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C.; Tim Tatarka and Paul Vestal, Assistant United States Attorneys, United States Department of Justice, Office of the United States Attorney, Billings, Montana; for Plaintiff-Appellee.

Colin M. Stephens (argued), Stephens Brooke PC, Missoula, Montana, for Defendant-Appellant.

Before: William A. Fletcher, Carlos T. Bea, and John B. Owens, Circuit Judges.

OPINION

OWENS, Circuit Judge:

John Russell Howald appeals from his convictions for a federal hate crime under 18 U.S.C. § 249(a)(2) and discharge of a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A). He argues that § 249(a)(2) is an unconstitutional exercise of Congress's Commerce Clause power both facially and as applied to him. He also contends that his § 249(a)(2) hate crime conviction is not a predicate crime of violence for § 924(c)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

A. Howald's Hateful Attack

On March 22, 2020, Howald decided, in his words, to "rid" his hometown of Basin, Montana, "of the fucking lesbians . . . [and] queers." To carry out this "mission," he armed himself with three semi-automatic rifles and fired at least seven shots at the house of a local woman. He then left the house and pronounced that "he was going to clean up the town once and for all" of the "lesbians and gays and people that do bad"; that he "just may have fucking killed a lesbian, I hope"; and that "they're gonna die, they're gonna leave, and it's gonna be awesome again." An officer arrived, drew his weapon, and ordered Howald to drop his rifles. Howald refused and, when the officer retreated to his vehicle, left the scene.

The next day, law enforcement arrested Howald and, in the following days and weeks, searched his vehicle and camper. They found several firearms, including the rifle used in the shooting. During a search of the victim's home, officers recovered spent rounds from the rifle and located bullet holes in her fence, yard, deck, and house. Though one of Howald's bullets reached the living room, fortunately, no one was physically injured in the attack.

B. The Indictment, Motions to Dismiss, and Trial

In a two-count superseding indictment, a grand jury charged Howald with violating 18 U.S.C. § 249(a)(2) by willfully attempting, through the use of a firearm, to cause bodily injury to a local resident because of their sexual orientation. The indictment specified that the rifle and ammunition had traveled in interstate and foreign commerce. In addition, the government alleged that the offense "included an attempt to kill" the victim. The grand jury also charged Howald with violating 18 U.S.C. § 924(c)(1)(A) for discharging a firearm during and in relation to a crime of violence, with the § 249(a)(2) count serving as the predicate crime.

Howald moved to dismiss both counts of the indictment. He argued that § 249(a)(2) exceeded Congress's Commerce Clause power, and if that charge were invalidated, the § 924(c) charge also would collapse. The district court upheld the charges, reasoning that "the jurisdictional element contained in § 249(a)(2) render[ed] the statute constitutional on its face based on binding U.S. Supreme Court and Ninth Circuit precedent," including Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), and United States v. Alderman, 565 F.3d 641, 648 (9th Cir. 2009).¹

In a subsequent motion to dismiss, Howald attacked the § 924(c) charge on a separate ground, contending that a violation of § 249(a)(2) was not a qualifying crime of violence for the § 924(c) charge. The district court rejected that argument, ruling that under the so-called "modified categorical approach," § 249(a)(2) was divisible and that Howald's crime of conviction—an attempt to kill with a dangerous weapon—was a crime of violence, as it necessarily required "the use, attempted use, or threatened use of physical force" as defined in § 924(c)(3)(A).

At trial, the jury heard testimony about the shooting and Howald's explanation (which a bystander had accidentally recorded) for why he tried to kill his neighbor. The jury also received evidence that the various firearms and ammunition—including the rifle and bullets used in the attack—had traveled in interstate and foreign commerce. The jury returned a guilty verdict on both counts, and the district court rejected Howald's posttrial motion for a judgment of acquittal on the hate crime conviction. The district court declined to reconsider its previous ruling as to § 249(a)(2)'s facial validity and further determined that, as applied, the government presented "ample evidence"—which Howald "never . . . disputed"—that he had used "multiple firearms, firearm components, and ammunition" that had "traveled in interstate and/or foreign commerce."

Howald received a sentence of 96 months' imprisonment on the hate crime charge (to run concurrent with his state sentence arising out of the same conduct) and 120 months' imprisonment on the § 924(c)(1)(A) charge (to run consecutive to the hate crime sentence and the state sentence).²

II. DISCUSSION

A. Standards of Review

We review "a district court's denial of a motion to dismiss an indictment on constitutional grounds de novo." Alderman, 565 F.3d at 644 (citation omitted). A motion for judgment of acquittal based on insufficient evidence is also reviewed de novo. United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).

In addition, "[w]e review de novo 'whether a criminal conviction is a crime of violence under § 924(c)(3).' " United States v. Buck, 23 F.4th 919, 923 (9th Cir. 2022) (citation omitted).

B. Section 249(a)(2) is Constitutional

"Due respect for the decisions of a coordinate branch of Government demands that [courts] invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Courts may strike down an act of Congress for exceeding its Commerce Clause authority only if the statute bears no rational relation to interstate commerce. See Gonzales v. Raich, 545 U.S. 1, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). A "presumption of constitutionality" guides our inquiry. Morrison, 529 U.S. at 607, 120 S.Ct. 1740.

1. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

Congress passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("HCPA"), 18 U.S.C. § 249, in 2009 to address bias-motivated violence. Pub. L. No. 111-84, 123 Stat. 2835; see also United States v. Hill, 927 F.3d 188, 196-97 (4th Cir. 2019) (describing some of the legislative background to the HCPA and noting that "Congress paid close attention to the scope of its authority under the Commerce Clause when it enacted the Hate Crimes Act, which was designed to strengthen federal efforts to combat violent hate crimes").

Section 249(a)(2)(A) of the HCPA makes it a crime "willfully [to] cause[ ] bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt[ ] to cause bodily injury to any person, because of the[ir] actual or perceived . . . sexual orientation." The statute identifies four jurisdictional "circumstances" (i.e., hooks or elements), one of which the government must prove in every § 249(a)(2) prosecution. 18 U.S.C. § 249(a)(2)(B). As relevant here, federal jurisdiction extends to bias-motivated acts where "the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce," or where "the conduct . . . otherwise affects interstate or foreign commerce." Id. § 249(a)(2)(B)(iii), (iv).³

2. Howald's Facial Challenge

Facial challenges, as opposed to as-applied challenges, are "the most difficult to mount successfully." Willis v. City of Seattle, 943 F.3d 882, 886 (9th Cir. 2019) (citing City of Los Angeles v. Patel, 576 U.S. 409, 415, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015)). They typically require a showing that no set of circumstances exists under which the law would be valid or that the law lacks a plainly legitimate sweep. Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615, 141 S.Ct. 2373, 210 L.Ed.2d 716 (2021).

Howald argues that § 249(a)(2) exceeds Congress's power under the Commerce Clause as set out in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and Morrison. He contends that "[j]ust as the mere use or presence of a firearm could not sustain federal jurisdiction for a regulation that lacked any other substantial relation to an economic enterprise in Lopez and Morrison, it cannot be sustained in Howald's case either."

But we have repeatedly distinguished Lopez and Morrison when the statute at issue—like the one here—contains a jurisdictional element. See, e.g., United States v. Dorsey, 418 F.3d 1038, 1045-46 (9th Cir. 2005) ("The Lopez decision did not alter th[e] rule that a jurisdictional element will bring a federal criminal statute within Congress's power under the Commerce Clause."), abrogated in part on other grounds by Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

Alderman solidified that rule and set out the framework we apply in Commerce Clause challenges to statutes containing such hooks. 565 F.3d at 645-46, 648. In that case, we rejected a Commerce Clause challenge to ...