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United States v. Jackson

United States Court of Appeals, Third Circuit

July 6, 2017

UNITED STATES OF AMERICA, Appellant
v.
CAROLYN JACKSON UNITED STATES OF AMERICA, Appellant
v.
JOHN E. JACKSON

          Argued February 7, 2017

         On Appeal from the United States District Court for the District of New Jersey (D.N.J.. Nos. 2-13-cr-00290-001 & 2-13-cr-00290-002) Honorable Katharine S. Hayden, District Judge

          Mark E. Coyne John F. Romano [Argued] Office of United States Attorney Counsel for Appellants.

          Rubin M. Sinins Herbert I. Waldman [Argued] Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins Counsel for Appellee.

          Louise Arkel [Argued] Carol Gillen David A. Holman Office of the Federal Public Defender Counsel for Appellee.

          BEFORE: MCKEE, COWEN, and FUENTES, Circuit Judges.

          OPINION

          COWEN, Circuit Judge.

         John and Carolyn Jackson ("John" and "Carolyn") were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law- offenses that were "assimilated" into federal law pursuant to the Assimilative Crimes Act ("ACA"). The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15, 000 fine). The government appeals from these sentences.

         We will vacate the sentences and remand for resentencing. Concluding that there is no "sufficiently analogous" offense guideline, the District Court declined to calculate Defendants' applicable sentencing ranges under the Guidelines. Although we adopt an "elements-based" approach for this inquiry, we conclude that the assault guideline is "sufficiently analogous" to Defendants' offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact-under the applicable preponderance of the evidence standard-with respect to this Guidelines calculation as well as the application of the statutory sentencing factors. We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

         I.

         John, a major in the United States Army, and Carolyn, his wife, were the biological parents of three children, including "JJ." They also became the foster parents of three young children: Joshua (born on May 13, 2005), "J" (born on April 1, 2006), and "C" (born on April 7, 2008). The three children were eventually adopted. Joshua died on May 8, 2008.

         Defendants were charged in a fifteen-count superseding indictment. These counts can be organized into three different categories: an assimilated state conspiracy charge, assimilated state substantive offenses, and substantive charges under federal law. These offenses occurred (at least in part) within the special maritime and territorial jurisdiction of the United States, i.e., at Picatinny Arsenal Installation in Morris County, New Jersey.

         Count 1 charged John and Carolyn with conspiracy to endanger the welfare of a child-Joshua, J, and C-under N.J. Stat. Ann. §§ 2C:24-4a and 2C:5-2-assimilated pursuant to the ACA. From August 2005 through April 23, 2010, Defendants, "for the purpose of promoting and facilitating conduct which endangered the welfare of a child, did agree with each other to engage in acts which constituted endangering the welfare of a child whom they had assumed responsibility for and accepted a legal duty to care for, namely, [Joshua, J, and C]." (A35-A36.) They carried out this conspiracy by, inter alia, physically assaulting the children with various objects and with their hands, withholding proper medical care (and failing to seek prompt medical attention for Joshua and C), withholding sufficient nourishment from the children (and adequate water from J and C), forcing J and C to consume food that caused them pain and suffering, such as red pepper flakes, hot sauce, and/or raw onion, causing C to ingest excessive sodium or sodium-laden substances, and employing cruel and neglectful disciplinary and child-rearing techniques.

         Counts 2 to 12 and Count 15 charged offenses under assimilated New Jersey law for endangering the welfare of a child (and aiding and abetting such endangerment) in violation of § 2C:24-4a and 18 U.S.C. § 2. Specifically, Defendants allegedly caused harm to the children in various ways, made them "neglected" children, and children "upon whom cruelty had been inflicted, as defined in N.J.S.A. Sections 9:6-1 and 9:6-3." (A39-A49, A52.) Counts 2 and 7 alleged that Defendants withheld sufficient nourishment and food from Joshua and C, respectively. Counts 4 and 8 similarly alleged that they withheld adequate water from J and C and prohibited these two children from drinking water. Counts 3, 6, and 12 charged that Defendants "physically assault[ed] [Joshua, J, and C, respectively] with various objects and with their hands." (A40, A43, A49.) In Counts 5 and 9, it was alleged that Defendants forced J "to ingest hot sauce, red pepper flakes, and raw onion" (A42) and C "to ingest hot sauce and red pepper flakes" (A46). Count 10 claimed that Defendants "caus[ed] [C] to ingest excessive sodium and a sodium-laden substance while restricting [C's] fluid intake, causing [C] to suffer hypernatremia and dehydration, a life threatening condition." (A47.) Count 11 then charged Defendants with withholding prompt and proper medical care for C's dehydration and elevated sodium levels. Finally, Count 15 alleged that Defendants withheld prompt and proper medical care for C's fractured humerus.

         Defendants were also accused of assaulting C with a dangerous weapon with intent to do bodily harm (and aiding and abetting this assault) in violation of 18 U.S.C. §§ 113(a)(3) and 2 (Count 13) as well as with intentionally assaulting C (and aiding and abetting such an assault) resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and § 2 (Count 14).

         Trial commenced on April 13, 2015, and lasted 39 days.[1]At the close of the government's case, the District Court granted judgments of acquittal on Counts 13 and 14. On July 8, 2015, the jury returned guilty verdicts on Counts 1 to 12 as to Carolyn and on Counts 1, Counts 3 to 9, and Counts 11 to 12 as to John. Accordingly, both Defendants were acquitted on Count 15 (renumbered as Count 13), and John was found not guilty on Counts 2 and 10.

         Using the offense guidelines for assault, U.S.S.G. § 2A2.3, and aggravated assault, U.S.S.G. § 2A2.2, the Probation Office calculated both Defendants' Guidelines range as 210 to 262 months. The government similarly calculated a sentencing range of 292 to 365 months. It sought sentences of 235 months for Carolyn and 188 months for John. A 10 1/2-hour sentencing was held on December 15, 2015. At the sentencing hearing, the District Court rendered an especially thorough ruling on the record. Declining to calculate a Guidelines sentence, it ultimately sentenced Carolyn to a term of imprisonment of 24 months (as well as three years of supervised release). John was sentenced to three years of probation (as well as 400 hours of community service and a $15, 000 fine).[2]

         II.

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction pursuant to 18 U.S.C. § 3742(b). As required by § 3742(b), the Solicitor General personally authorized the government to appeal.

         This case implicates a number of rather unusual sentencing issues. This is not surprising because Defendants were not convicted and sentenced for committing enumerated federal crimes of the sort that federal courts consider on a regular basis. Instead, they were convicted and sentenced in federal court for state law offenses "assimilated" into federal law pursuant to a federal statute, the ACA. The ACA provides that:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). This statute, which in its original form dates back to the 1820s, is designed to borrow state laws in order to fill gaps that exist in federal criminal laws with respect to criminal offenses that are committed on federal enclaves. See, e.g., Lewis v. United States, 523 U.S. 155, 160-61 (1998).

         However, setting aside these special circumstances, we look to the generally applicable post-Booker sentencing process. The sentencing court must engage in the following three-step process: (1) calculate the defendant's (now advisory) Guidelines range; (2) formally rule on the parties' motions for departure and, if a motion is granted, state how the departure affects the Guidelines calculation; and (3) consider the statutory sentencing factors specified in 18 U.S.C. § 3553(a) and determine the appropriate sentence to impose. See, e.g., United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2014) (en banc). We review sentences for both procedural as well as substantive reasonableness. See, e.g., id.

         III.

         A. "Sufficiently Analogous" Offense Guidelines

         We begin, as we must, with the Guidelines. Pursuant to U.S.S.G. § 2X5.1, the sentencing court, in cases where the offense is a felony for which no guideline expressly has been promulgated, applies the "most analogous" offense guideline. Defendants are correct that this Court should adopt an "elements-based" approach to this inquiry-which calls for a comparison between the elements of the offense of conviction with the purportedly analogous offense guideline and the elements of the various federal offenses covered by this guideline. However, we also agree with the government that, under this approach, the assault guideline is "sufficiently analogous" to Defendants' offenses of conviction. The District Court accordingly committed reversible error by concluding that there is no "sufficiently analogous" offense guideline in this case.

         The "Applications Instructions" direct the sentencing court to begin by "[d]etermin[ing], pursuant to § 1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction." U.S.S.G. § 1B1.1(a)(1) (citing U.S.S.G. § 1B1.2). U.S.S.G. § 1B1.2(a) ("Applicable Guidelines") states, inter alia, that the sentencing court should "[d]etermine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)." This guideline provides basic instructions on how to identify the offense guideline section:

Refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction. If the offense involved a conspiracy, attempt, or solicitation, refer to §2X1.1 (Attempt, Solicitation, or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. For statutory provisions not listed in the Statutory Index, use the most analogous guideline. See § 2X5.1 (Other Offenses).

Id.

         The Sentencing Commission's commentary explains that § 1B1.1 provides the basic rules for determining the guideline applicable to the offense conduct under Chapter Two (Offense Conduct). "The court is to use the Chapter Two guideline section referenced in the Statutory Index (Appendix A) for the offense of conviction." U.S.S.G. § 1B1.2 cmt. n.1. "However, . . . for statutory provisions not listed in the Statutory Index, the most analogous guideline, determined pursuant to § 2X5.1 (Other Offenses), is to be used." Id. "In the case of a particular statute that proscribes only a single type of criminal conduct, the offense of conviction and the conduct proscribed by the statute will coincide, and the Statutory Index will specify only one offense guideline for that offense of conviction." Id. The commentary to §1B1.2 also deals with the situation where the particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines-and the Statutory Index specifies more than one offense guideline for that particular statute: "[T]he court will determine which of the referenced guideline sections is most appropriate for the offense conduct charged in the count of which the defendant was convicted." Id. "For statutory provisions not listed in the Statutory Index, the most analogous guideline is to be used. See § 2X5.1 (Other Offenses")." Id.; see also id. ("If the offense involved a conspiracy, attempt, or solicitation, refer to §2X.1 (Attempt, Solicitation, or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense.").

         U.S.S.G. § 2X5.1 ("Other Felony Offense") states the following:

If the offense is a felony for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.
If the defendant is convicted under 18 U.S.C. § 1841(a)(1), apply the guideline that covers the conduct the defendant is convicted of having engaged in, as that conduct is described in 18 U.S.C. § 1841(a)(1) and listed in 18 U.S.C. § 1841(b).

         The commentary to § 2X5.1 states in relevant part that this guideline applies only to felony offenses not referenced to Appendix A (Statutory Index) (and accordingly U.S.S.G. § 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)) should be used for Class A misdemeanors)). U.S.S.G. § 2X5.1 cmt. n.3. It then states:

Background: Many offenses, especially assimilative crimes, are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. The court is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous. In a case in which there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553 control.
The sentencing guidelines apply to convictions under 18 U.S.C. § 13 (Assimilative Crimes Act) and 18 U.S.C. § 1153 (Indian Major Crimes Act); see 18 U.S.C. § 3551(a), as amended by section 1602 of Public Law 101-647.

Id. cmt. background.

         There are three basic tests that could be used to identify a "sufficiently analogous" offense guideline: (1) an "elements-based" approach, i.e., "[w]hether there is a sufficiently analogous guideline to a particular crime is generally a task of comparing the elements of the defendant's crime of conviction to the elements of federal offenses already covered by a specific guideline, " United States v. Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999) (citing United States v. Allard, 164 F.3d 1146, 1149 (8th Cir. 1999); United States v. Osborne, 164 F.3d 434, 437 (8th Cir. 1999)); (2) "comparing various Guidelines to 'the facts alleged in the indictment'" (Appellant's Brief at 28 (quoting United States v. McEnry, 659 F.3d 893, 899-901 (9th Cir. 2011))); or (3) a broader approach in which the sentencing court must take into account all of the circumstances and make factual findings to support its ultimate selection. Although it contends that "the assault Guidelines are sufficiently analogous offense Guidelines" under the "elements-based" approach (id. at 33), the government asks the Court to adopt the second test, what we call the "indictment-facts" approach. We, however, determine that the "elements-based" approach should apply.[3]

         Initially, the precedential "indictment-facts" case law cited by the government generally "pertain to the scope of inquiry when more than one guideline is assigned to a statute or when no guideline is assigned and the court determines that more than one guideline is sufficiently analogous [and must therefore select the 'most analogous' offense guideline]." (John's Brief at 24.) In United States v. Boney, 769 F.3d 153 (3d Cir. 2014), cert. denied, 135 S.Ct. 1003 (2015), this Court concluded that the district court failed to select the "most appropriate" offense guideline for the offense conduct charged in the counts of which the defendant was convicted pursuant to Application Note 1 of § 1B1.2, id. at 154-63. Likewise, we considered in United States v. Aquino, 555 F.3d 124 (3d Cir. 2009), which of two offense guidelines specified in the Statutory Index for a particular federal offense was the "most appropriate" guideline under this § 1B1.2 commentary and then applied the respective offense guidelines' cross-references, id. at 125-31. In another Third Circuit case cited by the government, we specifically addressed several issues that arose as a consequence of the sentencing court applying the "most analogous" offense guideline. United States v. Cherry, 10 F.3d 1003, 1005 (3d Cir. 2003) ("This appeal requires us to decide several issues which arise when the United States Sentencing Guidelines . . . do not contain a provision expressly applicable to the offense for which a defendant has been convicted and the district court applies a guideline deemed to be most analogous to the offense of conviction.").

         While the government does not cite to any precedential opinion adopting its understanding of the "sufficiently analogous" guideline inquiry, [4] the Fifth, Eighth, and Tenth Circuits have adopted the "elements-based" approach. This approach began with the Eighth Circuit's 1999 ruling in United States v. Osborne, 164 F.3d 434 (8th Cir. 1999).

         According to the Eighth Circuit, "[t]he first step of the USSG § 2X5.1 analysis is to determine whether there are any guidelines which are sufficiently analogous to the defendant's crime; if there are no sufficiently analogous guidelines, then the defendant is to be sentenced using the general provisions of 18 U.S.C. § 3553(b), " id. at 437 (footnote omitted) (citing United States v. Cefalu, 85 F.3d 964, 966-69 (2d Cir. 1996)). The Osborne court held that a de novo standard of review applies to this initial step because, among other things, "the issue most generally will involve comparing the elements of federal offenses to the elements of the crime of conviction." Id.; see also id. ("Secondly, a determination that there is not a sufficiently analogous guideline will require the district court to impose sentence under 18 U.S.C. § 3553(b), which we are convinced is a legal issue.").

         The government takes issue with this ruling, claiming that the Eighth Circuit offered no support for its approach. But the Osborne court did offer a persuasive explanation based on the Background Note to § 2X5.1 and the distinction the Sentencing Commission draws between a "sufficiently analogous" offense guideline, on the one hand, and the "most analogous" such guideline, on the other hand:

The background note to USSG § 2X5.1 states specifically, "The court is required to determine if there is a sufficiently analogous guideline and, if so, to apply the guideline that is most analogous. Where there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) control." USSG 2X5.1, comment. (backg'd). This portion of the application note mandates a two-step analysis, and makes abundantly clear that there is a difference between a situation where the district judge is choosing the most analogous guideline among sufficiently analogous guidelines, and a situation where there is no sufficiently analogous guideline. In construing the guideline and the application note, we must give meaning to each of these terms.

Id.[5]

         The Eighth Circuit went on to conclude that a deferential standard of review applies to the district court's "most analogous" guideline selection, indicating that the district court must take into account the circumstances of the case and make its own factual findings. Id. at 437-38. "Absent an indication that the district court misunderstood the legal standards, that is, it misunderstood the elements of the state offense or the analogous federal offenses, we will defer to its judgment as to how the facts fit into those elements." Id. at 438 (citing United States v. Mariano, 983 F.2d 1150, 1158 (1st Cir. 1993)). Furthermore, the Osborne court noted that choosing the "most analogous" offense guideline involves more than just interpretation of the various guidelines (but instead implicates the applicability of different guidelines to the facts). Id.

         In this case, the government agrees with the Eighth Circuit that "[w]hether there is a sufficiently analogous offense Guideline is a legal question subject to plenary review." (Appellant's Brief at 25 (citing United States v. Cothran, 286 F.3d 173, 176-77 (3d Cir. 2002); Aquino, 555 F.3d at 127).) According to the Osborne court, the divergent standards of review strike the appropriate balance between avoiding unwarranted sentencing disparities and imposing individualized sentences. Id. "With appellate courts reviewing the sufficiency question de novo, defendants will not receive sentences based on wholly inapplicable guidelines." Id. Nevertheless, § 2X5.1 cases "are inherently out of the ordinary; the Commission does not offer a predetermined guideline or offense level." Id. "By giving due deference to the district court's choice of the most analogous guideline, district courts will have more freedom to fashion the appropriate sentence in these unconventional situations on a case by case basis." Id.; see also United States v. Allard, 164 F.3d 1146, 1147-50 (8th Cir. 1999) (companion case to Osborne applying same principles).

         The Fifth Circuit as well as the Tenth Circuit have followed the Eighth Circuit's example by comparing the elements of the defendant's offense of conviction with the elements of federal offenses covered by a specific offense guideline in order to ascertain whether, as a legal matter, this guideline is "sufficiently analogous" to the offense of conviction. See, e.g., United States v. Rakes, 510 F.3d 1280, 1287-88 (10th Cir. 2007); United States v. Calbat, 266 F.3d 358, 363 (5th Cir. 2001); Nichols, 169 F.3d at 1269-71.

         In support for its assertion that a plenary standard of review applies to this inquiry, the government cites to our opinion in United States v. Cothran, 286 F.3d 173 (3d Cir. 2002). Cothran strongly weighs in favor of the "elements-based" approach.

         In that case, the defendant was convicted of conveying false information and threats about carrying an explosive device on an airplane in violation of 49 U.S.C. § 46507, and he contested the district court's "finding that the United States Sentencing Guideline (U.S.S.G.) § 2A6.1 [(Threatening or Harassing Communications)] was the most analogous offense guideline for Cothran's crime [as opposed to U.S.S.G. § 2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Abroad an Aircraft)]." Id. at 174. Observing that the courts are split vis-à-vis the applicable standard of review, we turned to Osborne's "comprehensive and cogent analysis of the standard to be applied." Id. at 176.

         "The [Eighth Circuit] noted that there is a two-step process involved: first, the district court must determine whether there is a sufficiently analogous offense guideline, and, if there is, it then must determine which guideline is most analogous." Id. at 177 (citing Osborne, 164 F.3d at 437). It "held that the first step, determining whether there is a sufficiently analogous guideline, is a legal question and is reviewed de novo." Id. (citing Osborne, 164 F.3d at 437). According to Cothran, the Osborne court correctly identified the standard of review to apply to the first step "[b]ecause determining whether there is an analogous guideline is substantially interpreting and applying the guidelines." Id. The Cothran Court then accepted Osborne's "logical" analysis with respect to the "most analogous" guideline inquiry, applying a deferential standard of review as to the district court's factual findings and application of the guidelines to these facts. Id. (citing Calbat, 266 F.3d at 363 n.1).

         While the Cothran Court did not specifically mention Osborne's "elements" language (and did not actually conduct the initial "sufficiently analogous" guideline inquiry), we did express approval for the Eighth Circuit's "cogent" analysis of the applicable standards of review. The Eighth Circuit adopted these standards for the "sufficiently analogous" guideline inquiry specifically because the first step would require district courts to look only to the elements, while the second step would require factual findings. Cothran thus adopted the elements-based inquiry from Osborne.

         Even though we must look to the respective elements, we stress that this inquiry must be conducted in a flexible and open-ended fashion. After all:

Numerous sections of the sentencing guidelines direct the court to apply the offense level of the federal offense most "analogous" to a particular unlawful activity; it would be unreasonable to read into every one of these sections the requirement that, in order to apply the analogous offense guideline, the sentencing court must effectively retry the defendant for an otherwise unrelated offense. "[A]nalogy does not mean identity. It implies difference." Sturm v. Ulrich, 10 F.2d 9, 11 (8th Cir. 1925).

United States v. Langley, 919 F.2d 926, 930-31 & n.8 (5th Cir. 1990) (citing inter alia § 2X5.1). In turn, the Tenth Circuit explained that "the court first had to ask what analogous provisions were within the ballpark; it then had to ask which represented the best fit." Rakes, 510 F.3d at 1287. "We generally compare the elements of the defendant's crime to the elements of federal offenses already covered by specific Guidelines sections to ascertain which plausible analogies exist for sentencing." Id. at 1288 (citing Nichols, 169 F.3d at 1270). In Allard (decided on the same day as Osborne), the Eighth Circuit similarly observed that, "by definition, analogous guidelines do not and need not perfectly match the defendant's crime." Allard, 164 F.3d at 1149 (citing United States v. Terry, 86 F.3d 353, 358 (4th Cir. 1996)). While the inquiry may still be "bounded by the elements of the offense of conviction" (John's Brief at 23), a perfect match of elements is not necessary (or even expected). Instead, the proffered guideline need only be within the same proverbial "ballpark" as the offense of conviction.

         This "ballpark" or "plausible analogy" notion actually makes a lot of sense in the ACA context. It is undisputed that "assimilated crimes, by definition, have no perfect matches among federal offenses"-otherwise they would not be assimilated under the terms of the ACA itself. (Appellant's Brief at 32 (citing Lewis v. United States, 523 U.S. 155, 164-72 (1988)).) The Background Note to § 2X5.1 explains that many offenses, particularly "assimilative offenses, " are not listed in the Statutory Index or in any of the lists of statutory provisions that follow each guideline-"Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe." § 2X5.1 cmt. background. The Sentencing Commission thereby contemplates that most assimilated offenses will actually have a "sufficiently analogous" offense guideline. In addition, this comment "suggests that the most analogous guideline is the one that covers the 'type of criminal behavior' of which the defendant was convicted." Calbat, 266 F.3d at 363.

         Accordingly, we now consider whether there is a "sufficiently analogous" offense guideline to Defendants' offenses of conviction. We begin by setting forth the assault (and aggravated assault) guidelines and the related federal offenses. The Court then turns to the state statutory provisions at issue here and (in particular) the jury instructions addressing the elements of the assimilated New Jersey offense of endangering the welfare of a child. Having done so, we compare the respective elements. In the end, we conclude that Defendants' offenses of conviction, the assault guideline, and the federal offense of simple assault are within the same proverbial "ballpark."

         The "Assault" guideline, U.S.S.G. § 2A2.3, "applies to misdemeanor assault and battery and to any felonious assault not covered by § 2A2.2 (Aggravated Assault)." § 2A2.2 cmt. background. The commentary to § 2A2.2, in turn, defines "Aggravated assault" as "a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an intent to commit another felony." § 2A2.2 cmt. n.1. "This [aggravated assault] guideline covers felonious assaults that are more serious than other assaults because of the presence of an aggravating factor, i.e., serious bodily injury; the involvement of a dangerous weapon with intent to cause bodily injury; strangling, suffocating, or attempting to strangle or suffocate; or the intent to commit another felony." § 2A2.2 cmt. background.

         18 U.S.C. § 113 prohibits "[a]ssaults within the special maritime and territorial jurisdiction." Defendants here were charged with (and judgments of acquittal were granted on) assault under § 113(a)(3) ("Assault with a dangerous weapon, with intent to do bodily harm") and § 113(a)(6) ("Assault resulting in serious bodily injury"). However, this federal provision sets forth additional assault offenses. For instance, "Assault by striking, beating, or wounding, " is punishable by a fine or imprisonment for not more than six months (or, pursuant to a 2013 amendment, for not more than one year). § 113(a)(4); see also Pub. L. No. 113-4, § 906, 104 Stat. 478 (2013). Pursuant to § 113(a)(5), "[w]hoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows: . . . . (5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or, if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year, or both."

         The Statutory Index lists more than forty different statutory sections for these two offense guidelines. See U.S.S.G. App'x A. It specifically lists § 2A2.3 for "18 U.S.C. § 113(a)(5) (Class A misdemeanor provisions only)." Id. In other words, the assault guideline applies where the victim is under the age of sixteen-thereby triggering either a fine or imprisonment for not more than one year (or both). See, e.g., 18 U.S.C. § 3559(a)(6) (specifying that Class A misdemeanor is any offense for which maximum term of imprisonment is one year or less but more than six months); U.S.S.G. § 2X5.2 cmt. n.1 ("Do not apply this guideline to a Class A misdemeanor that has been specifically referenced in Appendix A to another Chapter Two guideline.").

         Turning to the New Jersey statutory scheme, the District Court aptly observed that "we are dealing with a less than clear statute" (A6688), which "is very unsatisfactory . . . really a morass" (A6580). Specifically, N.J. Stat. Ann. § 2C:24-4a ("Endangering welfare of children") incorporates definitions of basic concepts like abuse and neglect from various provisions of Title 9 of the New Jersey Statutes Annotated ("Children-Juvenile and Domestic Relations Courts"). See, e.g., N.J. Stat. Ann. §§ 9:6-1 ("Abuse, abandonment, cruelty and neglect of child; what constitutes"), 9:6-3 ("Cruelty and neglect of children; crime of fourth degree; remedies"), 9:6-8.21 ("Definitions"); State v. N.I., 793 A.2d 760, 770 ( N.J.Super.Ct.App.Div. 2002) ("The imprecision of the Title 9 definitions incorporated into N.J.S.A. 2C:24-4a, which caused the [Criminal Law Revision] Commission to be 'not happy' and to recommend the statute only "[w]ith hesitancy, " has come home to roost in this case. It would, of course, be best if N.J.S.A. 2C:24-4a was self-contained with its own appropriate and precise definitions." (emphasis omitted)). Furthermore, it appears that the same conduct may be prosecuted under § 2C:24-4a as a crime of the second degree (which happened here) or as a fourth degree crime under N.J. Stat. Ann. § 9:6-3. See, e.g., State v. D.A.V., 823 A.2d 34, 34 (N.J. 2003) (Albin, J., concurring) ("[T]he same conduct is proscribed in the same language; however, when prosecuted pursuant to N.J.S.A. 2C:24-4, a defendant is exposed to a five- to ten-year state prison term, and when prosecuted pursuant to N.J.S.A. 9:6-3, a defendant is exposed only to an eighteen-month prison term. In that respect, it appears that those provisions are unique in the New Jersey Statutes Annotated." (emphasis omitted)).

         Under these circumstances, it is understandable the parties (especially Defendants) focus on the District Court's (rather extensive) jury instructions.

         Addressing Count 1 (the conspiracy charge) of the indictment, the District Court reviewed the elements of the child endangerment offense:

The New Jersey statutes upon which endangering the welfare of a child are based are Sections 2C:24-4a, 9:6-1 and 9:6-3 of the New Jersey Statutes Annotated. Section 2C:24-4a and Section 9:6-3 criminalize the act of endangering the welfare of a child, and Section 9:6-1 provides definitions of what constitutes abuse, abandonment, cruelty and neglect of a child.
At the outset I will read the statutes to you and then I will explain how you must apply the statutes to the facts of this case by identifying the specific elements that the government must prove beyond a reasonable doubt.

         Section 2C:24-4a reads, in pertinent part:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime.

         Section 9:6-3 reads, in pertinent part:

Any parent, guardian or person having the care, custody or control of any child who shall . . . be cruel to or neglectful of such child. . . shall be deemed to be guilty of a crime . . . .
Turning to the elements, to find Carolyn Jackson and John E. Jackson guilty of endangering the welfare of a child, the government must prove the following elements beyond a reasonable doubt:
1. That [Joshua, J, or C] was a child;
2. That the defendant knowingly caused the child harm that would make the child neglected or knowingly committed an act of cruelty against the child;
3. That the defendant knew that such conduct would cause the child harm or would inflict cruelty upon the child; and
4. That the defendant had a legal duty for the care of the child or had assumed responsibility for the care of the child.

(A6008-A6009.) The District Court then explained each element, defining the terms "child" (any person under the age of eighteen at the time of the offense), "cruelty, " and "neglect":

The second element that the government must prove beyond a reasonable doubt is that Carolyn Jackson and John E. Jackson knowingly caused the child harm that would make the child neglected or knowingly committed an act of cruelty against the child.
Section 9:6-1 of the New Jersey Statutes Annotated includes the following applicable definitions of cruelty and neglect. As defined under Section 9:6-1, the legal definition of abuse does not apply in this case.
Cruelty consists of any of the following acts, by anyone having the custody or control of the child:
(a) Inflicting unnecessarily severe corporal punishment upon a child;
(b) Inflicting upon a child unnecessary suffering or pain, either mental or physical;
(c) Habitually tormenting, vexing or afflicting a child;
(d) Any act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child; or
(e) Exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical well-being of such child.
Neglect consists in any of the following acts, by anyone having the custody or control of the child:
(a) Failing to provide proper and sufficient food, clothing, maintenance . . . medical attendance or surgical treatment . . . or
(b) Failure to do or permit to be done any act necessary for the child's physical well-being.
In New Jersey, the use of corporal punishment is not necessarily unlawful. The law prohibits the infliction of unnecessarily severe corporal punishment; however, as a general matter, a parent may inflict moderate correction such as is reasonable under the circumstances of the case. A parent may not inflict corporal punishment that is cruel, as I have just defined for you.

(A6010-A6011.) The District Court explored what is meant by acting "knowingly" (e.g., "A person acts knowingly with respect to the nature of his or her conduct or the attendant circumstances if he or she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he or she is aware that it is practically certain that the conduct will cause a result" (A6011)). It explained how Defendants could be found guilty for omissions or the failure to act. The jury was told that a failure to act or an omission can be the basis for criminal liability if the government proves beyond a reasonable doubt that the defendant had a legal duty to act and failed or omitted to perform that legal duty with knowledge that this failure was practically certain to cause harm. Additionally, the District Court instructed the jury that the government must prove beyond a reasonable doubt that each defendant had a legal duty, or assumed responsibility, for the care of Joshua, J, or C. Noting that these concepts encompass adoptive and foster parents, the District Court stated that "[a] person who has assumed responsibility for the care of the child includes any person who assumes a general and ongoing responsibility for the child and who establishes a continuing or regular supervisory or caretaker relationship with the child." (A6012.)

         The District Court, after summarizing the factual allegations for each substantive count (Counts 2 through 13), expressly incorporated its Count 1 instructions in each count. For the first substantive charge (Count 2), the written instructions provided a little more detail regarding the requisite elements:

I have previously instructed you regarding the Assimilative Crimes Act and Endangering the Welfare of a Child. There are two elements that the government must prove in a violation of the Assimilative Crimes Act:
1. First, that the defendants endangered the welfare of a child; and
2. Second, that the offense occurred within the special maritime and territorial jurisdiction of the United States.
Additionally, to prove a violation of endangering the welfare of a child in violation of New Jersey law, the government must prove:
1. That [Joshua] was a child.
2. That the defendant knowingly caused the child harm that would make the child neglected or a child upon whom cruelty has been inflicted;
3. That the defendant knew that such conduct would cause the child harm or would inflict cruelty upon the child; and
4. That the defendant had a legal duty for the care of the child or had assumed responsibility for the care of the child.
Because I already gave you detailed instructions regarding this offense in Count One, I will not repeat them. The same instructions apply to this count of the Superseding Indictment.

(A6019-A6020.)

         The jury was also given a written "Good Faith Defense" instruction, which stated, among other things that, "[i]f you find that Carolyn Jackson and John E. Jackson acted in 'good faith, ' as that term is defined below, that would be a complete defense to this charge, because good faith on the part of Carolyn Jackson or John E. Jackson would be inconsistent with his or her acting knowingly." (A6035.) According to the District Court:

A defendant acts in "good faith" when he or she did not know that his or her acts or omissions were practically certain to cause harm to a child, even though that knowledge turns out to be inaccurate or incorrect. Thus, in this case if Carolyn Jackson or John E. Jackson made an honest mistake or had an honest misunderstanding about whether his or her acts or omissions were practically certain to cause harm to a child then he or she did not act knowingly. A belief need not be objectively reasonable to be held in good faith; nevertheless, you may consider whether Carolyn Jackson or John E. Jackson's stated belief that his or her acts or omissions were not practically certain to cause harm to a child was reasonable as a factor in deciding whether the belief was honestly or genuinely held.

(Id.) Defendants did not have the burden of proving good faith. The written instructions summarized the defenses offered by Carolyn and John: (1) the conduct was done in good faith and not knowing that Defendants' acts or omissions were practically certain to cause Joshua, J, or C harm (i.e., they did not knowingly harm the three children): (2) they merely acted negligently or accidentally or otherwise failed to act through ignorance or mistake; (3) they did not inflict unnecessarily severe corporal punishment; and (4) Defendants did not enter into a criminal conspiracy to endanger the welfare of Joshua, J, or C.

         The written instructions for Counts 2, 4, 7, 8, 9, 10, 11, and 13 stated that Defendants allegedly caused harm to the respective child, "and made [him or her] a neglected child, and a child upon whom cruelty has been inflicted, as I have defined for you previously, in violation of Title 18, United States Code, Sections 13 and 2, and N.J.S.A. Section 2C:24-4a." (A6019, A6022, A6025-A6026, A6027, A6028-A6029, A6031.) For Counts 3, 5, 6, 9, and 12, the District Court's instructions did not mention the concept of neglect. Instead, the District Court referenced allegations that Defendants caused harm to the respective child and made him or her "a child upon whom cruelty has been inflicted, as I have defined for you previously, in violation of Title 18, United States Code, Sections 13 and 2, and N.J.S.A. Section 2C:24-4a." (A6021, A6023-A6024, A6027, A6030.) In its oral instructions, the District Court stated the following:

For Counts Two, Four, Seven, Eight, Ten, Eleven, and Thirteen, you may find a defendant guilty of endangering the welfare of a child based on either neglect or cruelty, but all twelve of you must unanimously find beyond a reasonable doubt that defendant knowingly caused harm to a child by either neglecting a child, as I have defined previously, or by inflicting cruelty upon a child, as I have defined it previously, or both. The government, however, does not have to prove both contentions for those Counts Two, Four, Seven, Eight, Ten, Eleven and Thirteen, and you do not have ...

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