US v. Kinard: Last year, in United States v. Thomas, the Fourth Circuit held that assault with a deadly weapon under the violent crimes in aid of racketeering statute (VICAR) was a crime of violence. In doing so, the court held that because the federal VICAR offense itself had, as an element, a requirement that the offense was done for purposes related to the racketeering enterprise that it required a “deliberate choice” that satisfied the mens rea requirement for the crime of violence analysis, even when the underlying state offense could be committed recklessly.
Kinard raised the same issue with a related state offense and the Fourth Circuit affirmed his conviction, based on Thomas.
Judge Keenan, joined by Judge Heytens, concurred in the result, agreeing that the panel was bound by Thomas, “which issued after briefing and argument in this case.” Regardless, she had “concerns with the resulting analysis,” arguing that looking to the mens rea of the racketeering element of the offense is incorrect and out of step with the approaches of other circuits. As she explained, “the mens rea required under the force clause thus differs from the mens rea required under the purpose element in that the latter does not require a showing that the defendant knowingly directed force at a target,” as required by the Supreme Court’s decision in Borden.
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