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____________________
No. 96-2123
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH LEON MEADER,
Defendant, Appellant.
____________________
Before
crime,
him
a felon-in-possession
of
essentially
based on prior
a minor.
sexual
we
affirm.
I. Factual Background
The
facts
of
the
crime
to the
prosecution, the
jury could
have found
most
that
appellant
abducted
the
He
A defense
who reported
On
received
was
juror's
that
abusive
his mother
had
was "dead
a history
of
set against"
domestic
abusers.
The
son
also
-2-
Before trial,
dire
The court
in which
involved or threatened.
physical
force
or
abuse
was
panel
would
and
impartially?
No juror responded.
In
a
the
juror
prejudge the case, and did she answer the voir dire question
falsely?
contact
with jurors,
see United
States
v.
Kepreos
,
759
F.2d
961,
hear testimony first from Decato, then from the juror's son, and,
only
if
questions remained, from the juror.
both
court
Further reflection by
and
counsel
dire transcript
led, however,
to a
decision to
hear
proposed by Meader
on the issue
a relative
involved in a
of yours,
or a
close friend
been
physical
a relative
of yours,
or a
close friend
been
The
juror,
of
submitted
proposed
acknowledged that
verbally abused
by an
she had
ex-husband,
informality."
been emotionally
and that
her son
and
had
been
son's
suggestion to Decato that she had her mind made up about the case
before its conclusion.
No way.
He -- he must have
fabricated
it
would
take
awhile
for
me to -- to come to the decision
because
it's
a
man's
life is what I said.
way I feel about any case.
man's life here in my hands.
on
In
response
to
her
son's
it's set,"
that was
the way
she
handled him -- "if I tell him this is it, that's all" -- and that
she viewed his statement as an attempt "to pump himself up,
himself look big" because his
make
trial.
Asked
if
her
had
a
life
in my hand and I did not know, you know, if I
should go along with everybody else.
going
Because I
towards guilty.
I was not.
waited
until,
you
know, I heard more about it and more evidence
and,
you
know, we deliberated before I finally said yes.
When the court asked if her experiences with her ex-husband
affected her attitude toward the trial, she answered:
-4-
abuse here or
is it that
a -- a
the
there
mental
problem
.
.
. I know a little bit about the psychic mind
and how it works.
an
awful
lot
of
stress
you
will do things on the spur of the
moment.
premeditated,
he thought it out before he -- he actually
did the crime.
Additionally, when
asked
specifically whether
her
experiences
affected
her
wouldn't
She repeated that sentiment when asked whether her personal views
. . . I put my
own
feelings aside."
Based on this inquiry, the court tentatively concluded
neither predisposition nor outside factors influenced the
verdict, but
also asked
for
briefs from
counsel.
The
that
jury's
court
rejected
defense
into
court
should
have
used
into
-5-
The
district
no suggestion of
First,
the
On Meader's claim
should
raised
to the
questions
that no objection
posed and
no
was
requests
for
The
actually
questions
adequacy of the investigation into bias, the court noted the need
to
avoid undue
intrusion into
jurors' lives,
and stated
that
court
had credited Decato's testimony about what the son told him, even
Count
consecutive term, as
of cocaine).
60-month
The
360-
Count
penalties
the abduction of
the
of
criminal
sexual abuse, and use of force and threats of death.
The
penalty
also
-6-
On
appeal,
the voir dire and the allegations of juror bias, both relating to
the
domestic
abuse
issue.
He
also
claims
that
his
prior
convictions
for
crimes of violence and thus should not have been used to classify
him as a career offender.
II. Domestic Abuse: Voir Dire and Juror Bias
A. Voir
Dire.
We
on the district
court's
failure
to
ask
verbatim
Meader's proposed voir dire questions.
court had
no obligation
to ask
the questions
in the
The
specific
language
made
known
at
the
time
focused on
the
critical concern
of bias,
we
are
concluding, we
Meader's complaint.
offer
He contends
no view
of the
substance
that
the court's
voir
of
dire
question,
only if they
would
impact their jury service, deprived him of the ability to use his
challenges
effectively.
-7-
decline
to
consider
court's
one
juror.
He
particularly
defendant
from
either
from effectively
"self-serving statements
. . .
challenging the
juror's
her
caselaw holds
that
district court
is
obliged
to
e.g., Walsh,
75
F.3d at
6-7; United
States
Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989), but that the
v.
court
has
"broad
must be mounted," United States v. Boylan, 898 F.2d 230, 258 (1st
Cir.
Walsh, 75 F.3d
at 7.
In this case,
the
an abuse
of discretion that
it is
difficult to
take
review
testimony from
the witness
who had
brought the
it
juror's
-8-
best to proceed in
First
Circuit's
admonition
out the
juror's true
attitudes.
Indeed, the
court
overcame
its
reluctance
process of
questioning the
juror also
was marked
juror would
not
be unduly
alarmed
or prepare
by
So that
ahead
for
questioning
the
opportunity
the
court excused the juror and consulted with counsel about possible
additional
areas of inquiry.
considered and
questioned by
supportable.2
Its
his
daughter
-as to what the young man said to Mr. Decato.
. . . Second, now that I have interviewed the juror and
she is
inquiry,
I am concerned
her son is
the cause of
that to bring
her son in
the
by
subpoena
or
to
send
an
FBI agent and private investigator
to interview him (as was proposed by the lawyers) would
unnecessarily
increase the
juror's
apprehension
and
notwithstanding
Third, to
pursue
from her son things that the juror may or may not
said to him would be embarking on a fishing
have
expedition
-9-
substantial written
opinion
fully explained
the basis
of
its
conclusions.
Nor
is
the
court's
finding
that
the
juror
was
not
court
and
the
juror
recounted
the
deliberation process,
she gave
Assessment of
the defendant
and
that, as
"the benefit
as she
feelings
the
of the
court
doubt."
responded to
the
the government's
forthright
responses
language, her
provided
ample
"clear, responsive,
and
reason
her
to
credit
assertions."
Thus, we find no basis connected to the court's handling
the
domestic
verdicts.3
abuse
issue upon
which
to
disturb
the
of
jury's
to
and candid
between juror
and
son,
3
We
the
appropriate.
for
enhanced sentences if
three
a defendant's
criminal history
satisfies
he
that
offense
is
a
either crimes
of violence
or
of
criminal
for statutory
rape and
unlawful
sexual
contact
with
a
the
guidelines.5
The issue is
one of law,
counted.
is therefore de
novo.
the
court seemed to deal with the two offenses as one, and its "crime
of violence" determination seemed to apply only to the
rape conviction.
statutory
to
include
both
convictions
trigger
-11-
A "crime of violence"
has as
an
element the
use, attempted
use,
or
of
another, or (ii)
or
or
extortion, involves
use
of explosives,
or
otherwise
4B1.2(1).
elaborates on
the
Application
meaning of
note
"crime
to
the
of violence"
provision
by
listing
murder,
fall
under
the
The
that can
happen
to a
human body
in
sexual
intercourse
with
a
13-year-old female."
its
Ann. tit. 17-A, S 252, and unlawful sexual contact, id. at S 255.
The conviction for rape required
unlawful sexual
contact similarly
the
person,
The conviction
for
finding that
the
required a
contact when that other person was not yet fourteen and he was at
least three years older.
-12-
391 A.2d 815 (1978), that linked passage of the state's statutory
its
own
perceptions with
supporting material,
the
district
this
court held
precedent
that
the
and
Maine
M
at
819,
and
that
cite
eader
takes
issue
with
this finding on multiple fronts.
His
the
well
rape statute
embraces a
wide variety
He emphasizes that
of consensual
acts,
including
those between two individuals who are both under the age
of
fourteen,
Consequently, he
statutory rape
and
liability
asserts, many,
would not
accompanying violence
guideline.
imposes
if not
involve a
without
most, circumstances
likelihood of
culpability.
the sort
by the career
of
of
offender
he
maintains
Meader
posits
it
to
be.
and
most
frequently
minor
and
include
abrasions,
hymenal
tears.'"
of
Taylor v.
United
United
States v.
DeJesus, 984
F.2d
21, 23
them, see
(1st Cir.
1993)
("formal
categorical
approach
.
.
in
the
fact
that
under the
formal categorical
This conclusion
approach, we
held,
a gun in a
closet, a car, a
Note 2
to
to
Id. at 224-25.
guideline section
4B1.2,
however,
explicitly
purposes
of the Armed
(ACCA), 18 U.S.C.
for
of a 'crime of
the
United States
v.
Bell
,
966
F.2d 703, 704 (1st Cir. 1992).
"authority interpreting
persuasive in
one
phrase frequently
is found
to
be
v.
Winter
,
22
F.3d
15,
18
n.3 (1st Cir. 1994).
v.
Fiore
,
983
F.2d
1,
4
-14-
the general
c
offense category, as
the focus
of the
"otherwise"
See
o
"the
conduct
set
forth
which
the
defendant was convicted").
the mark, however, because even when inquiry beyond the statutory
language is appropriate,
we have held
should
remain
categorical
into the
details of
particular
defendant's conduct, but, rather . . . should
merely assess the nature . . . of the . . . activity as
described in the indictment and fleshed out in the jury
instructions.
cord United States v.
lause.
t
Ac
This
is what
the district
court
did.
Using only
the
facts
9
A
for cases
in which
the statute
of conviction
covers
conduct
both
inside
and
outside the "crime of violence" sphere.
In
such
instances,
the
the basis
for the
violence.
F.2d 221,
224 (1st
conviction constituted
Cir. 1992).
a crime
example, where
of
960
the
statute
of
violent rape
of
a child
to the
consensual
sexual
intercourse
of
two
district
court
to review
the
charging
papers
and
jury
See U.S.S.G. S
4B1.2,
comment.
(n.2)
indictment,
contained
in
a 13-year-old female
or
physical
He
argues
that,
victim's gender
and the
age disparity
between the
two
individuals.
He
points
the sentencing
procedure,
undermining
the
rationale
of
no allegation of
charging
force, a categorical
analysis
of the Guidelines.
this result
is
consistent with
the
was not a
violent
He emphasizes
intent of
the
that
Sentencing
Commission,
which
listed
Indeed, he maintains
that
using
a
to
-16-
of
fairly
serious
crimes
as
their
means
of
livelihood.'
prop
"
Taylor
osition that the guidelines permit no
by
its nature,
posed
a serious
risk
of force in virtually
of
every
is not the only way in which the guideline standard could be met.
The age of the girl and the chronological gap between her and the
defendant were crucial facts that framed the nature of the crime,
and were relevant to the question of injury.10
Other circuits
issue in similar
fashion,
linking
See,
e.g.,
United
States v. Shannon, 110 F.3d 382, 388-89 (7th Cir. 1997) (en
(accepting
engages in sexual
government argument
contact with a four
that "anytime
an
adult
is
Since,
the
disparity in the sexual contact count and the jury found guilt on
both
counts,
our
inquiry
need reach no farther.
be
excessively artificial
indictment information
to require
relating to
a court
one count
Moreover, it would
to overlook
which so
the
clearly
rape
always
a
serious
11
nearly
three times
Maine
into the United States by a deported alien who had been convicted
o
of
viol
from
the
career
offender
context;
rather
than
involving
a substantial risk of
this
physical
12
We
status, if they
an
element
of
(enhancement
of
First, the
Second, a criminal
offender requirements
history that
by means of
satisfies the
any crime
physical
career
serious enough
to
possibly
cause
injury
to
have a significant
those
criminal
history.
-18-
We
recognize
the
injury"
for
a
minor.13
Indeed,
contrasting views of
complexity, as evidenced by
the
110
F.3d at 388-90.14
These are
issues that we
particularly
s
to
mos
i.e., regardless of
for federal sentencing purposes. Perhaps foremost among them i
standard age below which sexual intercourse typically may b
13
s
t categorical level -If statutory rape is to be classified generically as a
crime
of
violence
for
purposes
of
the
federal
sentencing
guidelines,
the
a crime of violence,
on
the
Seventh
the age
above which
sex with
a minor
is not
made
felonious,
in
the
absence of aggravating circumstances.
See United
States
v.
Shannon
,
110
F.3d 382, 386 (7th Cir. 1997) (en banc).
In
is
statutes
are
justified by the risk of physical injury.
indicate
below,
these inconsistencies
call
for
Id.
action
As we
at
policymaking level.
crime
of
on
the
risk of
an
almost
pregnancy or
fourteen-year-old was
disease.
110
F.3d at
388.
In
confined
to
the
act
of
intercourse,
not
the
possible
consequences
that
could
resolve
in
the first instance,15
of cases in this area, should be handled expeditiously
invoke
Some
be classified
as crimes
of violence
have framed
their
422 (5th Cir. 1996) (Texas offense of sexual contact with a child
18 U.S.C. S 16
Cir.
violence
person
attempts
to
sexually
to
sexual intercourse
violence).
(per curiam)
with a female
(holding generally
child under 16
is a crime
that
of
involved
the
almost
entirely
on
the
Eighth
at 140,
which was
more circumscribed
(question of
first
as
crime of violence).
Other
courts,
as
noted
earlier,
have
referred
to
the
intercourse
with a 13-year-old
criminalized
98 F.3d
768,
773-74 (3d
Cir. 1996)
(holding
that
showing
that
victim was
"forced
onto
bed
and
always
panel's 2-1 ruling that the district court had erred in enhancing
the
intercourse
two
teenagers,
the
crime
17-year-old
-20-
the
rule
of
lenity
to
crimes of violence
line
and
here
potential risk
qualifies as
guidelines.
of
physical
a crime of
injury to
violence under
another,"
that
the federal
offense
sentencing
defendant and a
conduct
between
two
minors cannot automatically be deemed violent.
F.3d 1065, 1072 (7th Cir. 1996).
-21-
See 94