Criminal Law

Voisine v. United States - Post-Decision SCOTUScast

SCOTUScast 8-18-16 featuring David Kopel
David B. Kopel August 18, 2016

On June 27, 2016, the Supreme Court decided Voisine v. United States. Stephen Voisine was convicted in 2003 of assaulting a woman with whom he was in a domestic relationship--a misdemeanor violation of a Maine statute. In 2009 Voisine turned a rifle over to federal officials who were investigating him for a separate alleged crime. When investigators discovered Voisine’s 2003 misdemeanor assault, they charged him under 18 U.S.C. § 922(g)(9), which makes it a federal crime for a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to “possess in or affecting commerce[] any firearm or ammunition.” In turn, a "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force … committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim.

Voisine challenged the § 922(g)(9) charge, arguing that under his Maine conviction offensive physical contact, as opposed to one causing bodily injury, was not a “use of physical force” and thus not a “misdemeanor crime of domestic violence” within the meaning of § 921(a)(33)(A). The district court rejected this argument and Voisine pled guilty on condition that he be able to appeal the court’s ruling. The U.S. Court of Appeals for the First Circuit affirmed the district court’s judgment, but the Supreme Court subsequently granted Voisine’s petition for certiorari, vacated the First Circuit’s judgment, and remanded the case for reconsideration in light of the intervening 2014 Supreme Court decision United States v. Castleman. That decision held the requirement of “physical force” satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction--but it did not resolve whether a conviction with the mens rea of reckless--as under the Maine statute--would qualify. On remand, the First Circuit again rejected Voisine’s challenge and held that his Maine conviction qualified as a “misdemeanor crime of domestic violence.”

The Supreme Court again granted certiorari, and affirmed the judgment of the First Circuit by a vote of 6-2. Justice Kagan delivered the opinion of the Court, which held that a reckless domestic assault qualifies as a "misdemeanor crime of domestic violence" that prohibits firearms possession by convicted felons under 18 U.S.C. § 922(g)(9). The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Alito. Justice Thomas filed a dissenting opinion, in which Justice Sotomayor joined as to Parts I and II.

To discuss the case, we have David Kopel, who is Adjunct Professor at University of Denver, Sturm College of Law.

Supreme Court Rules on Honest-Services Fraud: Robert F. McDonnell v. United States - Podcast

Criminal Law & Procedure and Free Speech & Election Law Practice Groups Podcast
Randall D. Eliason, William J. Haun, Stephen R. Klein, Tara Malloy June 29, 2016

On June 27, 2016, the United States Supreme Court issued a unanimous opinion in Robert F. McDonnell v. United States. The Court vacated the public corruption convictions of former Virginia Governor Bob McDonnell, finding that the prosecution failed to properly instruct the jury on the definition of an “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute. However, the Court rejected McDonnell's claims that the honest services statute and Hobbs Act are unconstitutional, and left the Court of Appeals to reconsider whether McDonnell had committed an "official act" under the Court's new definition. Our experts discussed the impact of the opinion, and debated its merits, as it relates to public corruption law and the criminal law more generally, as well as to the First Amendment and campaign finance law.


  • Prof. Randall D. Eliason, George Washington University Law School
  • William J. Haun, Associate, Hunton & Williams LLP
  • Stephen R. Klein, Attorney, Pillar of Law Institute
  • Tara Malloy, Deputy Executive Director, Campaign Legal Center

Abusive Civil and Criminal Enforcement: The Farmer and the CEO - Podcast

Criminal Law & Procedure Practice Group Podcast
Robert Everett Johnson, Paul D. Kamenar June 14, 2016

Are federal prosecutors abusing their enforcement powers in the civil and criminal context? The news is increasingly filled with examples of the government taking advantage of vague statutory language and applying powerful prosecutorial tools to questionable ends. On May 25, 2016, the House Subcommittee on Oversight of the Ways & Means Committee held a hearing criticizing the Department of Justice and the IRS practice of seizing the bank accounts of small businesses for allegedly “structuring” cash deposits in violation of the Bank Secrecy Act (originally passed to combat money laundering and terrorism finance) where there was no intent to violate the law and no underlying criminal activity. One witness included a Maryland farmer whose $60,000 bank account from farmers’ market proceeds was seized, and who was further punished for speaking to the press about his case. Pending before the Eleventh Circuit is United States v. Clay, a case in which some 200 FBI agents raided a Florida health care company over an accounting dispute stemming from the interpretation of an allegedly vague Florida Medicaid regulatory provision. That raid resulted in the prosecution, conviction, and sentencing of the company’s top executives. Our experts discussed these cases, as well as other recent controversies involving prosecutorial discretion, civil asset forfeiture, and the criminal law.


  • Robert Everett Johnson, Attorney, Institute for Justice
  • Paul D. Kamenar, Washington, D.C. Attorney and Senior Fellow, Administrative Conference of the United States

McDonnell v. US: Corruption or Federal Overreach?

Short video featuring Rachel Paulose
Rachel Kunjummen Paulose April 25, 2016

Partner at DLA Piper LLP and Former U.S. Attorney Rachel Paulose discusses the appeal of Governor McDonnell’s criminal conviction for corruption because he accepted gifts and money from Williams in exchange for helping Williams develop his business in Virginia. Governor McDonnell denies violating the relevant federal laws. The Supreme Court hears the case on Wednesday, April 27.