USA V. DAVID LINEHAN, No. 21-50206 (9th Cir. 2022)
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Defendant solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial. He was charged with retaliating against a trial witness (Count 1); soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property (Count 2); and soliciting the use of facilities of commerce with the intent that a murder be committed (Count 3). The jury acquitted Defendant on Count 1, but convicted him on Counts 2 and 3. Before his sentencing, Defendant renewed his arguments for acquittal for a third time, but the district court again denied his motion. The district court sentenced Defendant to consecutive 60-month sentences on Counts 2 and 3, for a total term of 120 months’ imprisonment, to be followed by three years of supervised release.
The Ninth Circuit affirmed conviction for soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, reversed his conviction for soliciting the use of facilities of commerce with the intent that a murder be committed, and remanded for resentencing. The panel held that a violation of Section 844(d) is a categorical match to Section 373(a). The panel concluded that a violation of Section 844(d) requires the defendant to have undertaken a substantial step toward the use of violent force, which means that a violation of Section 844(d) categorically requires the attempted use of physical force within the meaning of Section 373(a).
Court Description: Criminal Law. The panel affirmed David Linehan’s conviction for soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, in violation of 18 U.S.C. §§ 373(a) and 844(d); reversed his conviction for soliciting the use of facilities of commerce with the intent that a murder be committed, in violation of 18 U.S.C. §§ 373(a) and 1958(a); and remanded for resentencing, in a case in which Linehan, while in prison on federal charges, solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial. Section 373(a) punishes the solicitation of federal crimes that have “as an element the use, attempted use, or threatened use of physical force against property or against the person of another.” The panel addressed whether, under the categorical approach, transportation of an explosive (§ 844(d)) and using a facility of interstate commerce with intent that a murder be committed (§ 1958(a)) are crimes of violence under § 373(a). The panel held that a violation of § 844(d) is a categorical match to § 373(a). Rejecting an argument in which Linehan relied on United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A), the panel note UNITED STATES V. LINEHAN 3 that Linehan was not convicted of soliciting the attempted transportation of an explosive; he was convicted of soliciting the completed offense. The panel concluded that a violation of § 844(d) requires the defendant to have undertaken a substantial step toward the use of violent force, which means that a violation of § 844(d) categorically requires the attempted use of physical force within the meaning of § 373(a). The panel rejected Linehan’s argument that if the “attempted use” of force is the source of § 373(a) liability, the court must import a specific intent mens rea that is associated with attempt offenses, so that a predicate offense like § 844(d) that requires merely “knowing” misconduct is insufficient. The panel wrote that even if “attempted uses” of force did require a higher mens rea, § 844(d) contains a mens rea requirement that enables it to categorically qualify as an attempted use of force. The panel held that, as the government now concedes, a violation of § 1958(a) does not qualify as a crime of violence under § 373(a) because, as the Solicitor General conceded in Grzegorczyk v. United States, 142 S. Ct. 2580 (2022), § 1958(a) does not require that a defendant actually enter into a murder-for-hire agreement, that he carry out or otherwise attempt to accomplish his criminal intent, or that the contemplated murder be attempted or accomplished by another person. 4 UNITED STATES V. LINEHAN
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