Virginia wounding and murder are crimes of violence

Where unlawful wounding proscribed by Virginia Code § 18.2-51 meets the criteria for a crime of violence, and where Virginia murder’s requirement of extreme recklessness satisfies the mens rea of a “crime of violence,” the defendant’s contrary arguments were rejected.

Background

The issue is whether offenses under 18 U.S.C. § 1959 (violent crimes in aid of racketeering activity, or VICAR) must be committed with a sufficiently culpable mens rea to amount to “crime[s] of violence,” as necessary for conviction under 18 U.S.C. § 924(c). The VICAR statute punishes certain crimes committed in aid of racketeering activity, including (1) assault with a dangerous weapon or resulting in serious bodily injury under state or federal law and (2) murder under state or federal law.

Section 924(c), the offense of which Martin Manley was convicted on both Counts 25 and 35, provides, “any person who, during and in relation to any crime of violence … uses or carries a firearm … shall [be punished].” And “crime of violence” is defined in the elements clause as “an offense that is a felony and … has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

The Supreme Court recently held in Borden v. United States, 141 S. Ct. 1817 (2021), that a crime with a mens rea of “recklessness” cannot qualify as a “violent felony” under 18 U.S.C. § 924(e), which is materially similar to a “crime of violence” in § 924(c)(3). Manley argues that the predicate offenses for his § 924(c) convictions in both Counts 25 and 35 can be committed with a mens rea of recklessness and that therefore they are, by reason of Borden, no longer crimes of violence that can support his convictions under § 924(c).

Count 25

The offense charged in Count 24 and incorporated into Count 25 purportedly as a “crime of violence” was a violation of VICAR assault, premised on the state offense of unlawful wounding in violation of Virginia Code § 18.2-51. This court has held specifically that the unlawful wounding offense proscribed by Virginia Code § 18.2-51 meets the criteria for a crime of violence. Thus, Virginia unlawful wounding, in violation of § 18.2-51, satisfies the criteria set forth in Borden for a crime of violence, as the Virginia statute “demands that the perpetrator direct his action at, or target, another individual,” and such a mens rea is greater than negligence or recklessness.

Manley argues that the court should not consider the elements of the state statute alleged in Count 24 to determine whether the VICAR assault offense is a crime of violence because the predicate crime of violence alleged in Count 25 was VICAR assault, not Virginia assault. But this argument overlooks element (4) of VICAR assault, which requires that the assault be “in violation of the laws of any State or the United States.”

Manley next argues that cases from the Virginia Court of Appeals show that convictions under § 18.2-51 are upheld in Virginia based on reckless conduct, thus precluding the crime’s qualification as a crime of violence. The court’s holdings in these cases, however, hardly rejected the mens rea required by the explicit text of the statute that the perpetrator act with “the intent to main, disfigure, disable, or kill.”

Count 34

The offense charged in Count 34 and incorporated into Count 35 purportedly as a “crime of violence” was a violation of VICAR murder, premised on the state offense of murder in violation of Virginia Code § 18.2-32. The parties dispute whether “extreme recklessness” is a level of mens rea sufficient to satisfy the statutory definition of a crime of violence in § 924(c)(3)(A).

The Virginia Supreme Court has explained that this malice element may be “implied by conduct” when the conduct is “so harmful” to the victim as to support an inference of malice. It follows that this formulation necessarily requires conduct that uses physical force against another, as required by the definition of a crime of violence in § 924(c)(3)(A).

Since Borden was decided, two other courts of appeals have reached the same conclusion that crimes involving a mens rea short of knowledge but greater than ordinary recklessness can qualify as crimes of violence. The court’s conclusion that an offense with a mens rea of extreme recklessness satisfies the mens rea of a “crime of violence” accords with the context and purpose of § 924(c).

Part III

Niemeyer, J., as to this Part III:

I also conclude — in addition to our conclusions that Virginia law provides a sufficient mens rea for both offenses — that VICAR assault and VICAR murder require a mens rea sufficient to support the mens rea of a crime of violence within the meaning of § 924(c)(3) and that therefore Manley’s convictions under § 924(c)(1) are valid.

Affirmed.

United States v. Manley, Case No. 20-6812, Oct. 26, 2022. 4th Cir. (Niemeyer), from EDVA at Newport News (Smith). Jacob Smith and Holly Chaisson for Appellant. Jacqueline Romy Bechara for Appellee. VLW 022-2-227. 17 pp.