United States v. Dion ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1411
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON JEAN DION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Howard, Circuit Judges.
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.
June 16, 2022
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
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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
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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
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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.
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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
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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 (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.
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Stevens, 559 U.S. 460, 474 (2010); see also Bond v. United States,
572 U.S. 844, 861 (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 order in another proceeding so
long as any civil or criminal order was issued
in response to a complaint, petition, or
motion filed by or on behalf of a person
seeking protection[.]
Id. § 2266(5)(A). The opening clause of this subsection identifies
three types of orders that may constitute "protection order[s]."
Neither party suggests that the No-Contact Order fits within the
description of either of the first two types. That leaves the
third type.
The third type — "any other order issued by a civil or
criminal court" — is obviously a catch-all. Its wording reflects
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Congress's intent to include within the statutory sweep a wide
swath of court orders that are not specifically delineated. This
broadly inclusive intent is apparent from the open-ended language
indicating that "any other order issued by a civil or criminal
court" may, under particular circumstances, constitute a
"protection order." The word "any," in particular, "has an
expansive meaning," Patel v. Garland, 142 S. Ct. 1614, 1622 (2022)
(quoting Babb v. Wilkie, 140 S. Ct. 1168, 1173 n.2 (2020)), that
is most naturally read to modify "other order issued by a civil or
criminal court," denoting such a court order of whatever kind, see
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 9-
10 (2011) (reasoning that statutory phrase including term "any"
"suggests a broad interpretation"); Salinas v. United States, 522
U.S. 52, 56-58 (1997) (explaining that the term "any" reflects
"expansive" language). This commodious phrasing leaves no doubt
that Congress did not intend to exclude particular kinds of orders
simply because they were left unmentioned. See Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73, 80 (2002); see also United States
v. Contreras-Hernandez, 628 F.3d 1169, 1172 (9th Cir. 2011)
(rejecting inference that unmentioned item is excluded and
explaining that "catchall language" "suggests a broader reach").
Consequently, the bare fact that the statutory definition does not
specifically mention conditional release orders or no-contact
orders is not dispositive.
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None of this is to say that the catch-all category is
unbounded. Most naturally read, the statutory definition
circumscribes the catch-all category by two limitations.1 First,
a "protection order" must have been issued for one of the purposes
described in the definition. See 18 U.S.C. § 2266(5)(A). Second,
"any other order issued by a civil or criminal court" may be a
"protection order" only "so long as" it is "issued in response to
a complaint, petition, or motion filed by or on behalf of a person
seeking protection." Id.The defendant does not dispute that the No-Contact Order
in this case was issued for the purpose of preventing "contact or
communication with or physical proximity to" T.N. Id. Nor could
he: the No-Contact Order was designed to prevent the defendant
both from contacting T.N. and from being in physical proximity to
places frequented by her. The defendant does contend, however,
that the second limitation (the "so long as" clause) has not been
1The defendant does not contend that the catch-all category
should be constrained in any relevant way by the application of
the interpretive maxim ejusdem generis. That maxim teaches that
when a general term follows specific terms, the general term covers
only examples of the same type as the preceding specific terms.
See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 163
n.19 (2012). Although "firmly established," the maxim "is only an
instrumentality for ascertaining the correct meaning of words when
there is uncertainty." Garcia v. United States, 469 U.S. 70, 74-
75 (1984) (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 588
(1980)). This interpretive canon has no bearing here, inasmuch as
express textual limitations provide sufficient guidance as to what
Congress intended to include in the catch-all category.
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satisfied — a deficiency that, in his view, prohibits the inclusion
of the No-Contact Order in the catch-all category.
The government demurs. It maintains that the second
limitation does not narrow the catch-all category because those
parts of the definition are separated by a different clause that
begins with the word "including." Relying on the decision in
United States v. Cline, 986 F.3d 873, 876 (5th Cir. 2021), the
government submits that the "so long as" clause is best understood
as modifying the orders described in the "including" clause but
not the orders encompassed by the earlier clauses, like the catch-
all category.
In Cline, the Fifth Circuit rejected a defendant's
argument that a mandatory protection order was not a "protection
order" as defined in section 2266(5). See id. at 875-76. The
Cline defendant argued that because the order was issued sua sponte
pursuant to a statute, it did not satisfy the conditions described
in the "so long as" clause. See id. at 875. The Fifth Circuit
gave this argument short shrift. It declared that the orders
described after the word "including" were merely illustrative and
did not limit the sweeping definition provided in the opening
clause. See id. at 876. Applying the nearest-reasonable-referent
canon (an interpretative canon teaching that an adverbial phrase
ordinarily should apply to its nearest reasonable referent), the
court noted that the nearest reasonable referents for the
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conditions stated in the "so long as" clause were those orders
described in the "including" clause. Id.Our reading of the definition differs somewhat from that
of the Cline court. We conclude that the "so long as" clause
applies four-square to the catch-all category of "any other
order."2 "So long as" is familiar language and bears the same
meaning as "provided that." That phrase introduces a condition.
The Fifth Circuit's reading would render that condition without
bite, as it would apply only to some examples of "other order[s]."
Although the government argues that this result is permissible
based on the expansive nature of the definition, we decline its
invitation to adopt a construction that renders a condition
nugatory. We think that the more sensible reading — to give the
conditional language effect — is to read that condition as
applicable to the category of orders preceding those described in
the "including" clause. See Brown v. United Airlines, Inc., 720
F.3d 60, 68 (1st Cir. 2013) ("[I]t is settled law that courts
should strive to breathe life into every word and phrase in a
statute."). The appropriateness of that reading is confirmed by
the language of the "so long as" clause, which refers to "any civil
2 The Cline court acknowledged that this reading may well be
warranted, and ultimately determined that the mandatory protection
order was a "restraining order." See 986 F.3d at 876 ("At most,
the limitation would apply to the clause preceding the illustrative
category, which defines a protection order as including 'any other
order' that meets certain characteristics.").
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or criminal order," and mirrors the subject matter of the catch-
all category.
Had Congress included a comma before the "so long as"
clause, we doubt that there would be any question about the
clause's proper construction. We acknowledge that the absence of
that punctuation renders the sentence somewhat awkward — but its
meaning remains apparent. And where, as here, meaning is apparent,
we will not accord decretory significance to omissions in
punctuation. See Barrett v. Van Pelt, 268 U.S. 85, 91 (1925)
("Punctuation is a minor, and not a controlling element in
interpretation, and courts will disregard the punctuation of a
statute, or re-punctuate it, if need be, to give effect to what
otherwise appears to be its purpose and true meaning." (quoting
Chi., Milwaukee & St. Paul Ry. Co. v. Voelker, 129 F. 522, 527
(8th Cir. 1904))); Ewing's Lessee v. Burnet, 36 U.S. (11 Pet.) 41,
54 (1837) ("Punctuation is a most fallible standard by which to
interpret a writing . . . ."). Because the clause is most
naturally read as limiting the catch-all category, that is how we
read it.
C
The question remains whether the "so long as" clause
extends to the No-Contact Order. There is more to that question
than meets the eye.
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The "so long as" clause has four distinct elements. It
requires that "any civil or criminal order" be (1) "issued in
response" (2) "to a complaint, petition, or motion" that is (3)
"filed" (4) "by or on behalf of a person seeking protection." 18
U.S.C. § 2266(5)(A). The defendant barely develops any argument
particular to this clause and (from what we can tell) he only
contests the fourth element.3 We thus accept the government's
unchallenged representation that the other elements are satisfied
because the No-Contact Order was issued in material part in
response to a prosecutor's oral motion for no-contact and stay-
away conditions. The question, then, is whether that motion was
submitted "by or on behalf of a person seeking protection."
It cannot be gainsaid that T.N. was a "person seeking
protection" from abuse of the kind with which the VAWA is
concerned.4 She was a victim who sought protection by complaining
3 The defendant categorically contends that the "so long as"
clause means "either the person being protected must seek the
protection order or be seeking protection, or someone on behalf of
that person has to request the Maine judiciary to order
protection." He asserts, without elaboration, that a "bail order
does not fit this definition," and that even if it did, "there is
no evidence on this record that T.N. herself sought a no-contact
provision" in the conditional release order. Fairly read, we deem
the defendant's textual argument as one premised exclusively on
the fourth element.
4The circumstances of this case do not require that we address
the extent (if any) to which a "person seeking protection"
encompasses protection against abuse other than abuse of the kind
that the VAWA was intended to proscribe (such as, intimidation of
a witness who is not a victim).
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of abuse to the authorities. She made an allegation of physical
abuse at the hands of her long-term boyfriend (the defendant),
thus initiating a criminal charge of aggravated assault. That
fact is self-evident and, in all events, the defendant does not
challenge the government's representation.
This leaves the issue of whether the prosecutor's motion
for the no-contact and stay-away conditions was made "on behalf
of" T.N. The parties have divergent views on how to understand
"on behalf of" as used in the "so long as" clause. The defendant
suggests that a prosecutor cannot be said to have acted "on behalf
of" the victim because the victim is not the prosecutor's client
but, rather, the prosecutor acts for the state. The government
rejoins that the prosecutor sought the No-Contact Order "on behalf
of" T.N. because the no-contact and stay-away provisions were in
the interest of and for the benefit of T.N.
Were we to consider the phrase "on behalf of" in
isolation, it would be difficult to discern what was meant by
Congress. Some sources indicate that the "traditional" usage of
"on behalf of" was to signify "as the agent or representative of"
and was distinct from the phrase "in behalf of," which signified
"in the interest of" or "for the benefit of." See Bryan A. Garner,
Garner's Modern American Usage 103 (4th ed. 2016). But Congress's
use of the preposition "on" rather than "in" provides no helpful
clue: "[i]n current usage, the distinction is seldom followed."
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Id.; see 2 Oxford English Dictionary 73 (2d ed. 1989) (explaining
that "on behalf" is used "in the sense of" "in behalf" in "recent
use," referring to texts from the eighteenth and nineteenth
centuries). And it is likely that such a distinction "never had
a sound basis in actual usage." Behalf, Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/behalf
(explaining that in American English, "the distinction is
frequently not observed").
Rather, at the time of the statute's enactment, as now,
the prepositional phrase "on behalf of" had more than one meaning.
See Webster's Third New International Dictionary of the English
Language Unabridged 198 (1981) (defining both "on behalf of" and
"in behalf of" as "in the interest of," "as the representative
of," or "for the benefit of"). The phrase may be narrowly
understood as describing an agency principle, as in, a party acting
as a "representative of" a client. See id. But the phrase also
may be more broadly understood as describing the purpose of some
act: for example, "on behalf of" can mean either "in the interest
of" or "for the benefit of." See id.; see also Madden v. Cowen &
Co., 576 F.3d 957, 973 (9th Cir. 2009) (holding that "on behalf
of" as used in federal securities law means "in the interest of,
as a representative of, or for the benefit of"); United States v.
Frazier, 53 F.3d 1105, 1112 (10th Cir. 1995) (interpreting
guidelines sentencing enhancement using phrase "on behalf of," and
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beginning with premise that "literal" meaning could be "as a
representative of" or "in the interest or aid of").
The multiple meanings of "on behalf of" suggest that the
statutory text may be ambiguous, leading us to question whether
the rule of lenity may be in play. That rule is a principle of
statutory construction that requires narrow constructions of
ambiguous criminal statutes. See Kasten, 563 U.S. at 16. But it
applies when a criminal statute contains a "grievous ambiguity or
uncertainty," and "only if, 'after seizing everything from which
aid can be derived,'" a court "can make no more than a guess as to
what Congress intended." Muscarello v. United States, 524 U.S.
125, 138–39 (1998) (quoting Staples v. United States, 511 U.S.
600, 629 n.17 (1994), and United States v. Wells, 519 U.S. 482,
499 (1997)) (internal quotation marks omitted); see Ocasio v.
United States, 136 S. Ct. 1423, 1434 n.8 (2016); United States v.
Báez-Martínez, 950 F.3d 119, 129 (1st Cir. 2020). In other words,
a "grievous ambiguity" requires more than the "simple existence of
some statutory ambiguity." Muscarello, 524 U.S. at 138-39; see
Shular v. United States, 140 S. Ct. 779, 787 (2020). Because any
ambiguity latent in the phrase "on behalf of" is resolved by
reference to the statute's text and context, we conclude that the
rule of lenity has no application here.
At any rate, the defendant — on appeal — has not
developed any argument that such a grievous ambiguity exists. The
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only rule-of-lenity argument that the defendant makes in this court
relates to supposed ambiguity arising from the No-Contact Order's
unchecked box (an entirely different issue). See supra Part II(A).
As to the meaning of the "on behalf of" language, any rule-of-
lenity argument is therefore waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (referring to "the settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived");
see also United States v. De la Cruz, 998 F.3d 508, 519 n.12 (1st
Cir. 2021) (deeming lenity argument waived); United States v.
Voisine, 778 F.3d 176, 185 n.4 (1st Cir. 2015) (same).
In all events, the rule of lenity has no application
here. To verify this conclusion, we first repair to the language
of the statute itself, mindful that we must consider the statutory
"text, structure, history, and purpose" before the rule of lenity
comes into play. Barber v. Thomas, 560 U.S. 474, 488 (2010); see
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (explaining
that the "plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific
context in which that language is used, and the broader context of
the statute as a whole"). The statute's text and context make
clear that the meaning of "on behalf of" encompasses more than an
agency principle.
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To start, a broader understanding of the phrase "on
behalf of" is necessary to give those words significance when read
in the context of the "so long as" clause. The phrase — complete
with its neighboring words — is "by or on behalf of." The
conjunction "or" suggests that "on behalf of" is an alternate
prepositional phrase to "by." "By" is sufficiently broad to
account for acts performed by legal representatives of a party.
Dictionary definitions of "by" include both actions done "through
the direct agency" of a party and those done "through the medium
of (an indirect or subordinate agent)." See Webster's Third
International, supra at 307. These meanings accord with our
commonsense understanding of the term as used in connection with
court filings. A motion filed "by" a party, for instance, is
ordinarily understood as capturing motions filed at the direction
of a party (say, by a party's lawyer). Accordingly, to give
meaning and effect to the phrase "on behalf of," the phrase must
mean something more than the simple memorialization of an agency
principle that is already captured in the word "by." See United
States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty
'to give effect, if possible, to every clause and word of a
statute.'" (quoting Inhabitants of Montclair v. Ramsdell, 107 U.S.
147, 152 (1883))).
Next, the "so long as" clause's reference to "criminal
order[s]" makes pellucid that the phrase "on behalf of" means "in
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the interest of" or "for the benefit of." Unlike civil protection
orders — which are sought by a petitioner either by bringing an
independent civil action or by motion in an ongoing civil case —
"[c]riminal protection orders" are often issued "as bail
conditions or as conditions of release to protect the victim during
the pendency of a criminal case." Off. on Violence Against Women,
U.S. Dep't of Just., 2018 Biennial Report to Congress on the
Effectiveness of Grant Programs Under the Violence Against Women
Act 148 (2018), https://www.vawamei.org/wp-
content/uploads/2020/07/rtc_entire_final_oct2019.pdf. At the
time of the VAWA's enactment — as now — states used no-contact and
stay-away orders in criminal cases as a means of addressing the
problem of domestic abuse.5 See Model Code on Domestic and Family
Violence § 208 (Nat'l Council of Juv. & Fam. Ct. Judges 1994)
("Before releasing a person arrested for or charged with a crime
involving domestic or family violence . . ., the court or agency
having authority to make a decision concerning pretrial
release . . . may impose conditions of release or bail on the
person to protect the alleged victim," including no-contact and
stay-away orders); see also Developments in the Law — Legal
5Maine furnishes an example. That state has instituted a
civil petition process for those seeking orders of protection.
See Me. Rev. Stat. Ann. tit. 19-A, § 4005. It has, however, also
statutorily authorized courts to issue sua sponte protection
orders as a condition of pretrial release in criminal cases
involving crimes between family members. See id. tit. 15, § 321.
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Responses to Domestic Violence, II. Traditional Mechanisms of
Response to Domestic Violence, 106 Harv. L. Rev. 1505, 1514 & n.54
(1993) (explaining that jurisdictions may use no-contact orders as
a condition of bail or pretrial release); Catherine F. Klein &
Leslye E. Orloff, Providing Legal Protection for Battered Women:
An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev.
801, 1167 & n.2259 (1993) (observing that states are "increasingly
placing conditions on bail and pretrial release for domestic
violence perpetrators" and collecting relevant state laws).
Congress must have been aware of this praxis when it legislated
the VAWA as the federal response to the issue of domestic violence
and must have intended that the "protection order" definition
encompass no-contact and stay-away orders imposed as conditions of
release or bail. See Voisine v. United States, 579 U.S. 686, 699
(2016) (inferring from state-law background against which Congress
enacted federal ban on firearm ownership that Congress intended
crime to encompass individuals with prior misdemeanor convictions
for reckless use of force against a domestic relation).
Viewed against this backdrop, the reference to "criminal
order[s]" in the "so long as" clause supplies strong evidence that
"on behalf of" is not narrowly circumscribed by agency principles.
Those orders are typically issued either at a prosecutor's behest
or sua sponte by the court (and not at the request of a victim).
See Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 16-17
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(2006) ("In most jurisdictions today, criminal courts issue
protection orders at the prosecutor's request as a condition of
pretrial release after a [domestic violence] arrest."); Christine
O'Connor, Domestic Violence No-Contact Orders and the Autonomy
Rights of Victims, 40 B.C. L. Rev. 937, 946-47 (1999) (explaining
that criminal protection orders are criminal no-contact orders
that courts may issue "as part of another criminal proceeding,
such as [a] bail determination, with the state acting as a party").
A narrow construction of the phrase "on behalf of" would — all
things considered — be unreasonable as it would nullify Congress's
apparent intent to include "criminal order[s]" in the definition's
sweep. "Everything depends on context, and when read in context,"
Brown, 720 F.3d at 68, the phrase "on behalf of" in the "so long
as" clause must mean "in the interest of" or "for the benefit of."
If more were needed — and we do not think that it is —
our reading of the phrase "on behalf of" is consistent with the
apparent purposes of the "so long as" clause and the "protection
order" definition generally. The legislative history suggests
that the "so long as" clause may well have been intended to exclude
orders issued sua sponte by courts without any indication that a
particular person was seeking protection. Congress, when enacting
the VAWA, was skeptical of so-called "mutual protection orders,"
which are protection orders running against those who sought
protection orders in the first place. See Catherine F. Klein,
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Full Faith and Credit: Interstate Enforcement of Protection Orders
Under the Violence Against Women Act of 1994, 29 Fam. L. Q. 253,
266 (1995). When it enacted a full faith and credit provision to
require that jurisdictions enforce protection orders of other
jurisdictions, Congress purposefully denied full faith and credit
status to protection orders that were "issued by a court against
a person who . . . filed a written pleading for
protection . . . if the order was issued sua sponte by the court
or if it was not based on specific findings that each party was
entitled to an order." H.R. Rep. 103-395, at 35-36 (1993); see 18
U.S.C. § 2265(c) (excluding "protection order issued . . . against
one who has petitioned, filed a complaint, or otherwise filed a
written pleading for protection against abuse" if "no cross or
counter petition, complaint, or other written pleading was filed
seeking such a protection order"). Our reading of the "so long
as" clause similarly removes from the catch-all category's domain
any order that does not respond to the interests of "a person
seeking protection."
We add, moreover, that a broad reading of "on behalf of"
is consistent with Congress's intent to afford the "protection
order" definition expansive scope. The definition's scope sets
the boundaries for the reach of the VAWA's criminal provisions
addressing interstate abuse using the term "protection order." A
broad definition furthers the original purpose of those
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provisions, which were enacted to address domestic abusers who had
theretofore escaped both the reach of state law enforcement and
the jurisdiction of state court orders. See S. Rep. No. 103-138,
at 61-62 (1993) (explaining domestic violence as an interstate
issue that justified "requir[ing] one State to enforce the 'stay-
away' order of another" and warranted imposition of federal
penalties to address "abusers who cross State lines to continue
abuse"); S. Rep. No. 101-545, at 39-40 (1990) (describing
interstate crimes as intended to "clos[e] loopholes created by the
division of criminal law responsibilities among the States"). To
this end, Congress's changes to the "protection order" definition
since the VAWA's enactment served only to expand its breadth. See
Violence Against Women and Department of Justice Reauthorization
Act of 2005, Pub. L. 109-162, § 106, 119 Stat. 2960, 2982 (2006)
(adding, among other things, term "restraining order" and word
"any" before "other order"); 151 Cong. Rec. S13,749, S13,763 (2005)
(explaining in section-by-section analysis that changes were made
to "clarify that courts should enforce the protection orders issued
by civil and criminal courts in other jurisdictions").
It would be nothing short of quixotic to read "on behalf
of" narrowly and leave unpunished (under the VAWA) violators of
criminal orders sought by prosecutors to protect victims of abuse
of the kind intended by Congress to come under the carapace of the
VAWA, simply because the victim or her legal representative may
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not specifically have requested such orders. To be sure, some
orders issued sua sponte or at the request of prosecutors might be
considered "restraining order[s]" and, thus, included within the
"protection order" definition. See Cline, 986 F.3d at 876. But
a related penalty provision for the crime of stalking under the
VAWA indicates that Congress considered the terms "restraining
order" and "no-contact order" to refer to distinct types of orders.
See 18 U.S.C. § 2261(b)(6) (punishing whoever "commits the crime
of stalking in violation of a temporary or permanent civil or
criminal injunction, restraining order, no-contact order, or other
order described in section 2266"). It would be implausible
(indeed, senseless) for Congress to have excluded from the
"protection order" definition no-contact orders issued in criminal
proceedings that would not otherwise be considered "restraining
order[s]," solely because they had not been requested by a victim
or her attorney. We can discern no plausible reason as to why
Congress would disparately apply such a limitation to exclude, for
example, sua sponte no-contact orders but not sua sponte
restraining orders. The interpretation of a criminal statute
cannot be hung on so wobbly a hook. Cf. Caron v. United States,
524 U.S. 308, 316 (1998) ("The rule of lenity is not invoked by a
grammatical possibility. It does not apply if the ambiguous reading
relied on is an implausible reading of the congressional
purpose.").
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In this instance, all roads lead to Rome. Consistent
with the various interpretive modalities explored above, we
conclude that the phrase "on behalf of" in the "so long as" clause
must mean "in the interest of" or "for the benefit of" a person
seeking protection. With this meaning in place, the prosecutor's
request for no-contact and stay-away provisions easily satisfies
the requirement that such a request be made "on behalf of" a
victim. We hold, therefore, that the No-Contact Order constitutes
a "protection order" as defined in section 2266(5).
D
The defendant's contrary arguments are unconvincing.
Only one warrants discussion.
The defendant dwells at great length on how certain state
procedures for obtaining civil protection orders afford
significant safeguards to alleged abusers. But he fails to
persuade us that either the VAWA's text or any other reliable
indicia of congressional intent suggest that court orders can only
satisfy the statutory definition if they are accompanied by
procedural trappings peculiar to civil cases. In fact, neither
the elements of the crime nor the definition of "protection order"
require a protection order that was issued following notice and an
opportunity to be heard. Cf. United States v. Hicks, 389 F.3d
514, 535 (5th Cir. 2004) (rejecting challenge to conviction for
possessing firearms while subject to restraining order premised on
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validity of order because criminal statute does not "indicate[]
that it applies only to persons subject to a valid, as opposed to
an invalid, protective order" (emphasis omitted)); 18 U.S.C.
§ 922(d)(8)(A) (requiring for firearm-related charge for persons
subject to restraining order that such order be "issued after a
hearing of which such person received actual notice").
That ends this aspect of the matter. We conclude that
the no-contact and stay-away provisions of a conditional release
order may, under certain circumstances, constitute a "protection
order" as defined in 18 U.S.C. § 2266(5). Those circumstances
require that the order be "issued in response to a complaint,
petition, or motion filed by or on behalf of a person seeking
protection." See id. That compendium of circumstances, however,
does not require that the person seeking protection herself seek
protection directly in the form of a court order. Instead, such
a person need only be found to be "seeking protection," and a court
order may be sought by a prosecutor on her behalf when it aids her
protection. That is plainly what transpired here. We thus
conclude that the district court did not err in refusing to dismiss
the indictment based on the defendant's definitional challenge.
III
We need not linger long over the defendant's argument
that the indictment should have been dismissed because his due
process rights were infringed. The defendant premises this
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argument on the assertion that he did not receive constitutionally
appropriate notice of the potential for federal prosecution if he
violated the No-Contact Order. His assertion does not withstand
scrutiny.
In his reply brief, the defendant clarifies that he does
not rely on statutory vagueness as a ground for his failure-of-
notice claim. This means that he has foregone any argument that
sections 2262(a)(1) and 2266(5) failed to give him notice because
they used "terms so vague that men of common intelligence must
necessarily guess at [their] meaning and differ as to [their]
application." United States v. Lanier, 520 U.S. 259, 266 (1997)
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
He argues, instead, that he should have received actual notice of
any federal penalties for violating the No-Contact Order when it
was imposed.
Because — as the defendant implicitly concedes — the
statute is not unconstitutionally vague, the statute itself gave
constitutionally adequate notice to the defendant that crossing
state lines to engage in conduct prohibited by a protection order
would subject him to federal prosecution. See United States v.
Jahagirdar, 466 F.3d 149, 154 (1st Cir. 2006) ("Indulging the
acceptable fiction that perpetrators closely read statutes before
acting, this statute gave [the defendant] ample warning that he
was courting violation."). The No-Contact Order was such a
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"protection order" according to the plain language of section
2266(5). See supra Parts II(B)-(C). Such "plain language," which
a person of ordinary intelligence would understand to include
orders like the No-Contact Order, "constitutes a constitutionally
sufficient warning." United States v. Arcadipane, 41 F.3d 1, 5
(1st Cir. 1994); see Sabetti v. Dipaolo, 16 F.3d 16, 18 (1st Cir.
1994) (explaining that even criminal provisions with "run-of-the-
mill statutory ambiguities" typically do not create "fair notice"
violations unless the provisions criminalize conduct generally
considered innocent). Fair warning requires no more. See
Arcadipane, 41 F.3d at 5 ("Fair warning . . . does not mean that
the first bite is free, nor does the doctrine demand an explicit
or personalized warning.").
IV
We need go no further. For the reasons elucidated above, we hold
that the no-contact and stay-away provisions in a conditional release order
may, under certain circumstances, satisfy the VAWA's definition of a
"protection order" as set forth in section 2266(5). Because we find unfounded
the defendant's claim that those circumstances are absent here, his challenge
fails. We likewise conclude that his due process challenge fails. Hence,
we affirm both the district court's denial of the defendant's motion to
dismiss and the defendant's conviction.
Affirmed.
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