United States of America v. JOHN ERNEST DADE

San Francisco, CA - Criminal defense lawyer represented defendant with a motion to vacate, set aside, or correct his sentence or interstate domestic violence and use of a firearm in relation to a violent crime charge.

In 2002, a grand jury returned a second superseding

indictment charging Dade with eight counts: threatening

interstate communications, in violation of 18 U.S.C.

§ 875(c) (Count 1); interstate stalking, in violation of

18 U.S.C. § 2261A(2)(B)(i) (Count 2); interstate domestic

violence, in violation of 18 U.S.C. § 2261(a)(1) (Counts 3,

5, and 6)1; brandishing a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and

(C)(i) (Counts 4 and 7); and witness tampering, in violation

of 18 U.S.C. § 1512(b)(2)(A) and (b)(3) (Count 8). The

charges stemmed from Dade's actions against Teresa Aikele,

his former girlfriend and the mother of their son.

Dade proceeded to a jury trial. Viewed in the light most

favorable to the verdict, the trial evidence established the

following regarding the events that form the basis of Count

6 (interstate domestic violence). On October 20, 2000,

Aikele received a call from Dade from her own home phone

while she was at work. He still had a key to her house and

had let himself in. When Aikele got home, he was still there.

Aikele testified that he wanted her to go out with him and

have dinner and go dancing. When she refused, he pulled

her off the loveseat on which she was sitting and threw her

onto the floor. He started punching her in the stomach and

took her pants off. She testified that he penetrated her with

his fingers. He then grabbed her hair and dragged her into

1 Counts 3 and 6 alleged that Dade committed interstate domestic

violence, in violation of § 2261(a)(1), on two different occasions.

Section 2261(a)(1) was amended in the interim between the alleged

conduct underlying Counts 3 and 6. Compare 18 U.S.C. § 2261(a)(1)

(1996) with 18 U.S.C. § 2261(a)(1) (2000). The jury instruction for

Counts 3 and 6 were therefore different—Count 6 requiring the jury to

find an additional element that Dade caused "bodily injury” to the victim.

UNITED STATES V. DADE 5

the bedroom. In the bedroom, he handcuffed her, pulled her

shirt over her head, and began biting her on her breast, telling

her that they were both going to die. He put a gun to her face

and told her the only way to get out of the situation was to

kill her and himself. Eventually he calmed down and undid

the handcuffs on Aikele so she could sleep. The next

morning, she convinced him that she would not call the

police if he left, and he did.

Counts 3 (interstate domestic violence) and 4

(brandishing a firearm during the crime of interstate

domestic violence alleged in Count 3) were based on a

subsequent attack on Aikele four months later. On February

18, 2001 around 3:00 a.m., Dade broke into Aikele's house

by smashing a pane of glass, reaching in, and unlocking the

door. Dade then entered Aikele's bedroom, grabbed her, and

said, "See what you make me do? See what lengths you

make me go to see you? I just want to see you.” Aikele

testified that he was "really angry” and grabbed her by the

hair and slapped her in the face. He pulled her clothes off

and put a gun to her face. He pushed her to the bed and

called her demeaning names and said she was going to "get

him off.” Aikele testified that he penetrated her with his

fingers and performed oral sex on her against her will. He

slept in another room of Aikele's house for the rest of the

night. The next morning, Aikele asked Dade if she could go

to church, and he refused saying that she was going to tell

someone about what he had done. He took her clothes off

again and penetrated her with his fingers and performed oral

sex on her against her will. Aikele was asked why she did

not contact the police when Dade was sleeping in the other

room. She responded that she "didn't dare” because he was

angry that she had him arrested on a prior occasion and had

told her "if you ever have me arrested, I'll kill you.”

6 UNITED STATES V. DADE

At the close of trial, the district court instructed the jurors

that, to find Dade guilty of either count of interstate domestic

violence, they would need to find that Dade traveled in

interstate commerce to commit, or attempt to commit, a

"crime of violence against Teresa Aikele.” The district court

instructed the jury that, as a matter of law, three Idaho state

offenses—assault, battery, and burglary—were crimes of

violence. Therefore, it further instructed the jury that the

government must prove that Dade committed either Idaho

assault, battery, or burglary in connection with the attacks on

Aikele, with each member of the jury "agreeing on which of

these crimes the defendant committed.” The district court

then provided the jurors with instructions that outlined the

elements of each predicate offense as they applied to Dade's

case:

An "assault” under Idaho law is committed

when a person:

(1) unlawfully attempts, with apparent

ability, to commit a violent injury on the

person or another; or

(2) intentionally and unlawfully threatens by

word or act to do violence to the person

of another, with an apparent ability to do

so, and does some act which creates a

well-founded fear in the other person that

such violence is imminent.

A "battery” under Idaho law is committed

when a person:

(1) wilfully [sic] and unlawfully uses force or

violence upon the person of another; or

UNITED STATES V. DADE 7

(2) actually, intentionally, and unlawfully

touches or strikes another person against

the will of the other; or

(3) unlawfully and intentionally causes

bodily harm to an individual.

"Burglary” under Idaho law is committed

when a person:

(1) enters the residence of another, and

(2) at the time entry is made, that person has

the specific intent to commit an assault or

battery.

Additionally, the district court instructed the jurors that, to

find Dade guilty of violating § 924(c), they would need to

find that Dade brandished a firearm during and in relation to

the "crime of violence” as charged in Count 3 (interstate

domestic violence).

At the conclusion of Dade's trial, the jury convicted

Dade of five of the eight counts: threatening interstate

communications (Count 1), interstate stalking (Count 2),

interstate domestic violence (Counts 3 and 6) ("§ 2261”),

and use of a firearm in relation to a crime of violence (Count

4) ("§ 924(c)”). The jury's verdict did not expressly specify

which predicate Idaho offense it relied on to find Dade guilty

of the § 2261 and § 924(c) counts. The district court

sentenced Dade to an aggregate term of 336 months'

imprisonment to be followed by a 5-year term of supervised

release.

Dade appealed and this court affirmed his convictions,

but vacated and remanded his sentence in light of United

8 UNITED STATES V. DADE

States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en

banc). See United States v. Dade, 136 F. App'x 973, 975

(9th Cir. 2005). On remand, the district court imposed the

same 336-month aggregate sentence.

In 2009, Dade filed his first 28 U.S.C. § 2255 motion. In

2011, the district court dismissed Dade's § 2255 motion on

the merits and denied a certificate of appealability. See

United States v. Dade, Nos. 4:09-cv-00512-BLW & 4:01-cr00196-BLW, 2011 WL 6301123, at *15–16 (D. Idaho Dec.

16, 2011).

In 2015, the Supreme Court in Johnson v. United States

("Johnson II”), 576 U.S. 591 (2015), held that the residual

clause of the Armed Career Criminal Act ("ACCA”),

18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague

because it left "grave uncertainty” about both "how to

estimate the risk posed by a crime” and "how much risk it

takes for a crime to qualify as a violent felony.”2 Johnson

II, 576 U.S. at 597–98. Three years later, in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court

extended its reasoning in Johnson II to the definition of

"crime of violence” found in 18 U.S.C. § 16(b). Dimaya,

138 S. Ct. at 1216. The Court concluded that § 16(b) is

unconstitutionally vague because it creates "more

unpredictability and arbitrariness than the Due Process

Clause tolerates.” Id. (quoting Johnson II, 576 U.S. at 598).

Following the Court's decision in Johnson II, Dade

sought authorization from this court to file a second or

successive § 2255 motion in the district court. This court

2 In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme

Court held that the constitutional rule announced in Johnson II applies

retroactively to cases on collateral review. Welch, 136 S. Ct. at 1268.

UNITED STATES V. DADE 9

granted authorization, and Dade filed the § 2255 motion

giving rise to the instant appeal. In the motion, he

challenged his § 2261 convictions, asserting that they must

be vacated because the offenses that served as the predicate

crimes of violence—Idaho burglary, battery, and assault—

no longer qualify as categorical crimes of violence under

Johnson II and Dimaya.

3 Specifically, he argued that Idaho

burglary is a crime of violence only under 18 U.S.C. § 16(b),

which was facially invalidated in Dimaya, 138 S. Ct. at 1216.

Because the jury had not specified which of the three Idaho

offenses it had relied on in reaching its verdict, Dade argued

that the § 2261 convictions could have relied on an invalid

burglary predicate and that therefore his convictions were

unlawful under Dimaya. Dade also challenged his § 924(c)

conviction, asserting that the § 924(c) conviction must also

be vacated because it was predicated on his now invalid

§ 2261 conviction as charged in Count 3.

The district court denied Dade's second § 2255 motion.

Applying United States v. Geozos, 870 F.3d 890 (9th Cir.

2017), overruled on other grounds by Stokeling v. United

States, 139 S. Ct. 544 (2019), as recognized in Ward v.

United States, 936 F.3d 914, 918 (9th Cir. 2019), the district

court concluded that Dade's claims did not satisfy the socalled gatekeeping provision set forth in § 2255(h)(2),

because the record made clear that Dade's convictions did

not rest on § 16(b) and therefore his claims did not actually

"rely on” Dimaya. Citing both the jury instructions and

3 The Supreme Court decided Dimaya while Dade's second § 2255

motion was pending in the district court. The parties supplemented their

briefing to analyze and apply Dimaya to their arguments. Because

Dimaya is an extension of Johnson II, and Dimaya is directly applicable

to the statute at issue, 18 U.S.C. § 16, we will address the parties'

arguments only as they relate to Dimaya.

10 UNITED STATES V. DADE

evidence introduced at trial, the district court held that

Dade's § 2261 convictions clearly relied on a valid legal

ground—§ 16(a)—for categorizing the three predicate

crimes of violence because the jury instructions required the

jury to find that Dade used or attempted to use violent,

physical force for Idaho assault, battery, and burglary.

Because Dade's § 924(c) conviction is predicated on his

§ 2261 conviction as charged in Count 3, the district court

applied the same reasoning and concluded that Dade's

challenge to his § 924(c) conviction also did not rely on

Dimaya. The district court granted Dade a certificate of

appealability. This timely appeal followed.

II.

We review de novo a district court's decision to deny a

§ 2255 motion. United States v. Reves, 774 F.3d 562, 564

(9th Cir. 2014).

The definition of "crime of violence” in 18 U.S.C. § 16

contains two parts: subsection (a), which is known as the

force or elements clause, and subsection (b), which is known

as the residual clause. These subsections define a crime of

violence as:

(a) an offense that has as an element the use,

attempted use, or threatened use of

physical force against the person or

property of another, or

(b) any other offense that is a felony and that,

by its nature, involves a substantial risk

that physical force against the person or

UNITED STATES V. DADE 11

property of another may be used in the

course of committing the offense.

18 U.S.C. § 16.

As we briefly mentioned, in Dimaya, the Supreme Court

struck down the residual clause ("§ 16(b)”) as

unconstitutionally vague. Dimaya, 138 S. Ct. at 1216. In

doing so, the Court concluded that § 16(b) is

unconstitutionally vague because, similar to the ACCA's

residual clause declared unconstitutional in Johnson II, it

creates "more unpredictability and arbitrariness than the Due

Process Clause tolerates.” Id. (quoting Johnson II, 576 U.S.

at 598).

The government contends that we need not address

Dade's Dimaya-based challenges to his § 2261 and § 924(c)

convictions because Dade has not demonstrated that his

claims "rely on” the constitutional rule announced in

Dimaya, and thus, his claims do not satisfy the gatekeeping

requirement of § 2255(h)(2). We agree.

To file a second or successive § 2255 motion, a movant

must show that his claim relies on "a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h)(2). "A claim necessarily

'relies on' a rule of constitutional law if the claim is that the

movant was sentenced in violation of that constitutional

rule.” Geozos, 870 F.3d at 895. In Geozos, we clarified how

to determine whether a movant was sentenced in violation of

a new constitutional rule for purposes of satisfying

§ 2255(h)(2). See id. at 895–96. There, we recognized that

there may be instances in which a court has specified which

of the two clauses (i.e., the force clause or the residual

clause) it has invoked in classifying a particular offense as a

12 UNITED STATES V. DADE

crime of violence, which would then allow us to easily

determine whether a conviction or sentence rested on a valid

legal theory. Id. at 895. However, even where the record

lacks such an explicit statement, it nonetheless may be

possible to determine that the district court did not rely on

the residual clause by looking to the relevant background

legal environment at the time of trial. See id. at 896. If the

record and legal background support that the district court

did not rely on the residual clause when categorizing an

offense as a crime of violence, then a movant's claim does

not "rely on” the new constitutional rule announced. Id.

Here, the district judge made the determination and

instructed the jury that each Idaho predicate offense was, as

a matter of law, a crime of violence. By convicting Dade of

the § 2261 and § 924(c) counts, the jury concluded that Dade

had indeed committed a crime of violence. However, the

verdict did not expressly specify on which predicate the jury

relied to make that determination. Therefore, before

determining whether the district court relied on § 16(a) or

§ 16(b) to conclude that the Idaho predicate offenses were

crimes of violence, we must first determine whether the

record as a whole makes clear which predicate offenses the

jury relied on to convict Dade of violating § 2261 and

§ 924(c). Although the jury did not return a special verdict

indicating on which predicates it necessarily found, we can

narrow the predicate offenses the jury necessarily relied

upon by reviewing the trial record.

We first address Count 6, which required the jury to find

that Dade committed either Idaho assault, battery, or

burglary, and that as a result of committing one of those

offenses, Dade "thereby cause[d] bodily injury” to Aikele.

18 U.S.C. § 2261(a)(1) (1996) (emphasis added). The jury's

guilty verdict on Count 6 validates that the jury concluded

UNITED STATES V. DADE 13

that the crime of violence Dade committed "cause[d] bodily

injury.” Id. On this record, the only Idaho predicate that

could have caused bodily injury is Idaho battery. Even

assuming that the jury agreed that Dade committed Idaho

burglary or assault, the record reflects that the jury

necessarily also found the elements of Idaho battery when it

concluded that Dade's crime of violence "cause[d] bodily

injury” to Aikele. Therefore, we can conclude that Count 6

necessarily rests on Idaho battery.

We next address Counts 3 and 4. The jury instruction for

Count 3 was not identical to that of Count 6 because § 2261,

the interstate domestic violence statute, was amended in the

interim between the conduct underlying each count. Unlike

Count 6, the jury instruction for Count 3 did not include the

bodily injury element. On this record, we cannot conclude,

merely from the conviction on Count 3, which predicate the

jury necessarily relied on to convict Dade for that count. But

the jury also convicted Dade of Count 4—the § 924(c)

offense—which was predicated on Dade committing a crime

of violence as charged in Count 3. Thus, in order to convict

Dade of Count 4, the jury was required to find that Dade

"brandished” a firearm "during and in relation to” the crime

as charged in Count 3. "[T]he term 'brandish' means, with

respect to a firearm, to display all or part of the firearm, or

otherwise make the presence of the firearm known to another

person, in order to intimidate that person, regardless of

whether the firearm is directly visible to that person.”

18 U.S.C. § 924(c)(4). On this record, the finding that Dade

brandished a firearm during a crime of violence, as charged

in Count 3, must be based on Dade displaying the firearm,

or making its presence known, in front of Aikele, after he

had entered her home. Therefore, the predicate crime of

violence in Counts 3 and 4 could not have been Idaho

burglary which, under Idaho law, is complete upon entry, see

14 UNITED STATES V. DADE

State v. Rawlings, 363 P.3d 339, 342 (Idaho 2015).

Accordingly, we can conclude that the jury must have

necessarily relied on either Idaho assault or battery to

convict Dade of Counts 3 and 4.

We now must determine whether the district court's

finding that the implicated predicate offenses—Idaho assault

and battery—relied on the force clause of § 16(a) or the

residual clause in § 16(b). We consider both the record

before the district court and the relevant background legal

environment at the time of Dade's trial. See Geozos,

870 F.3d at 896. The record confirms that the district court

relied on § 16(a) to conclude that Idaho assault and battery

were crimes of violence. Prior to trial, the government

submitted a trial memorandum to the district court, stating

that Idaho assault and battery were crimes of violence under

§ 16(a) because the offenses had as an element the use,

attempted use, or threatened use of physical force against the

person or property of another. Dade neither filed a trial brief

nor objected to the government's arguments in its trial brief.

This supports the view that the district court did not rely on

§ 16(b) to conclude that Idaho assault and battery are

categorical crimes of violence.

Moreover, our caselaw instructs us to examine the

relevant background legal environment to determine

whether there is any controlling law from the time Dade

went to trial that would indicate whether the district court

relied on something other than § 16(b). See Geozos,

870 F.3d at 895–96. The relevant background legal

environment further confirms that the district court's

conclusion that Idaho assault and battery were crimes of

violence did not rest on § 16(b). The residual clause, by its

terms, applied only to an offense "that is a felony.” 18 U.S.C.

§ 16(b) (emphasis added). In order to be classified as a

UNITED STATES V. DADE 15

felony, a crime must be punishable by imprisonment for

more than one year. See, e.g., Moncrieffe v. Holder,

569 U.S. 184, 188 (2013). But under Idaho law, at the time

of Dade's trial, assault was punishable by imprisonment in

the county jail for up to three months, see Idaho Code § 18-

902, and battery was punishable by imprisonment in the

county jail for up to six months, see id. § 18-904. Under

Idaho law, neither battery nor assault is a felony.

Furthermore, Idaho assault and battery do not meet the

federal definition of a felony. See Moncrieffe, 569 U.S.

at 188. Therefore, under the relevant legal background, the

district court could not have relied on § 16(b) to classify

Idaho assault and battery as crimes of violence.

The outcome might have been different had we not been

able to eliminate Idaho burglary as the basis for the jury's

verdict on Counts 3, 4, and 6, because the record confirms

that the district court relied on the residual clause to

categorize Idaho burglary as a crime of violence. In its pretrial memorandum, the government stated that burglary—

unlike assault and battery—was categorized as a crime of

violence under the residual clause. Just as that submission

suggests that the district court likely relied on the force

clause to determine that assault and battery are crimes of

violence, see supra p. *14, it likewise supports concluding

that the district court may have relied on the residual clause

to categorize burglary as a crime of violence. Nor does the

controlling law at the time of Dade's trial establish

otherwise. See Geozos, 870 F.3d at 896. As the government

concedes, at the time of Dade's trial, we had recognized that

similar statutory residential burglary offenses were

categorical crimes of violence under the residual clause. See

United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.

2000); United States v. Becker, 919 F.2d 568, 571–72 (9th

Cir. 1990), superseded by statute as stated in United States

16 UNITED STATES V. DADE

v. Ramos-Medina, 706 F.3d 932, 937 (9th Cir. 2013). Based

on the record and legal background, we must therefore

presume that the district court relied on the residual clause,

not the force clause, to categorize Idaho burglary as a crime

of violence. See Geozos, 870 F.3d at 896. But because the

jury's verdict here did not rest on the Idaho burglary

predicate, it is clear that Dade's conviction does not rest on

the residual clause.

The record and relevant background legal environment

thus confirm that the district court's determination that Idaho

assault and battery qualify as crimes of violence did not rest

on § 16(b). Because his § 2261 and § 924(c) convictions did

not rely on § 16(b), Dade's challenges to those convictions

do not "rely on” Dimaya. See Geozos, 870 F.3d at 895–96.

Dade's second § 2255 motion, therefore, does not meet the

gatekeeping requirements for a second or successive motion.

28 U.S.C. § 2255(h)(2). Because Dade has not satisfied the

gatekeeping requirement set forth in § 2255(h)(2), we need

not reach the question whether any Dimaya error is harmless.

See Geozos, 870 F.3d at 897

Dade has not demonstrated that he was convicted and

sentenced in violation of Dimaya and, therefore, fails to

satisfy the gatekeeping requirement set forth in 28 U.S.C.

§ 2255(h)(2). For the foregoing reasons, we affirm the

district court’s denial of Dade’s § 2255 motion.



AFFIRMED