An offense with a mens rea of recklessness does not qualify as                                 a violent felony under the Armed Career Criminal Act (ACCA).          

          In Borden v. United States, 593 U.S. ___ (2021), the Supreme Court held that an offense is not a “violent felony” under the ACCA’s elements clause (18 U.S.C. §924(e)(2)(B)(i)) if it only requires a mens rea of recklessness.

          Charles Borden pleaded guilty to being a felon-in-possession of a firearm (18 U.S.C. §922(g)) and the government sought an enhanced sentence under the ACCA. Mr. Borden’s Tennessee conviction for reckless aggravated assault was used as one of the three predicates for the ACCA enhancement. That crime is defined as recklessly committing an assault and either causing serious bodily injury to another or using or displaying a deadly weapon. Slip Op. at 3.

          Mr. Borden argued in district court that the offense was not a violent felony under the ACCA’s elements clause because a conviction could be based on a reckless mental state. He contended that “only purposeful or knowing conduct” met the ACCA’s elements clause requirement for the use of force “against the person of another.” Slip Op. at 3. The district court held that reckless offenses qualified as violent felonies and the Sixth Circuit affirmed citing United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017).

          An offense is a violent felony under the ACCA’s elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). Writing for a plurality in Borden, Justice Kagan explained that the “critical  context  here  is  the  language  that ‘against another’ modifies—the ‘use of physical force’” and the ‘“use  of  force’  denotes  volitional  conduct.” Slip Op. at 9. Thus, the ACCA’s elements clause “covers purposeful and knowing acts, but excludes reckless conduct[.]” Id. at 10.

          The Borden plurality distinguished Voisine v. United States, 579 U.S. 686 (2016) because of the textual difference between the statute at issue in that case and the ACCA’s elements clause. Slip Op. at 21. The ACCA’s elements clause mens rea requirement “does not come from the word ‘use.’” Id. Rather, it comes from the phrase “against the person of another” which is the ‘“critical’ text for deciding the level of mens rea needed.” Id. at 21-22. Such an offense “do[es] not require, as ACCA does, the active employment of force against another person.” Slip Op. at 23. Since Mr. Borden’s ACCA enhancement was based on an offense that required a mens rea of recklessness, the judgment of conviction was reversed.  

          Justice Thomas concurred in the judgment. He found that Mr. Borden’s reckless aggravated assault conviction was not encompassed in the ACCA’s elements clause. In his view, a reckless crime “does not have as an element the ‘use of physical force’ because that phrase ‘has a well-understood meaning applying only to intentional acts designed to cause harm.’” Thomas, J., concurring in judgment at 2.

          Justice Thomas noted that Mr. Borden’s reckless aggravated assault conviction would have fallen within the ACCA’s residual clause which was held to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591, 597 (2015). Thomas, J., concurring in judgment at 2. Although Justice Thomas believed Johnson was wrongly decided, id., at 3, he followed its precedent. Id. at 5.

          In dissent, Justice Kavanaugh argued that “the ordinary meaning of the statutory phrase ‘use of physical force against the person of another’—just like the phrase ‘use of physical force’—encompasses reckless offenses.”

          Congratulations to AFPDs Erin Rust and Jennifer Coffin and the rest of the Borden team for their superb work in Borden.


    A confidential informant’s credibility can be corroborated with a controlled buy

          An affidavit for a state search warrant for the residence of Rafael Moore was supported by background information obtained from a confidential informant. The affidavit also described a controlled buy between the informant and Mr. Moore. A search of the residence revealed firearms, drugs and material used to facilitate drug trafficking.

          Mr. Moore argued in district court that the search warrant affidavit failed to show the informant’s reliability. After his suppression motions and request for an evidentiary hearing were denied, he entered a conditional guilty plea (Fed.R.Crim.Proc. 11(a)(2)) to drug and firearm charges and reserved the right to appeal the suppression ruling. See United States v. Moore, --- F.3d --- (6th Cir. 2021).

          On appeal, Mr. Moore argued that the search warrant affidavit failed to adequately show the informant’s reliability and that “the informant’s tip was insufficiently detailed.” Slip Op. at 5. The Sixth Circuit, however, affirmed the district court’s ruling. The court noted the frequency with which information from confidential informants is used to support search warrants and that such information is often based on hearsay statements. The court explained that “an affidavit that both details an informant’s tip and describes a controlled drug purchase with the informant provides sufficient corroborating information to uphold a finding of probable cause.” Slip. Op. at 4.

          The Sixth Circuit said a search warrant affidavit does not have to include express attestations regarding an informant’s reliability “if it sufficiently details a controlled buy that supports the  informant’s  credibility.” Slip Op. at 5. Moreover, “a search is permissible based on an informant’s bare assertions if law enforcement can independently corroborate the informant’s credibility.” Id. In the court’s view, a single controlled buy “can be sufficient to establish probable cause to believe that evidence of drug trafficking is present at the purchase location.” Slip Op. at 4. The most critical factor in Mr. Moore’s case was that “the affidavit detailed a controlled buy at [his] residence between the informant and [him].” Slip Op. at 5.

          As a final note, the court pointed out that in order to obtain an evidentiary hearing on a suppression motion it is not enough to merely allege that the facts in an affidavit are insufficient to establish probable cause. Rather, the defendant “must set forth sufficiently definite, specific, detailed, and non-conjectural” reasons for why contested factual issues cast doubt on a search’s validity.” Slip Op. at 7 (citation and internal quotation marks omitted).