Death of victim ends crime of interstate domestic violence, 4th Circuit holds

The crime of interstate domestic violence ends when a victim dies, so conduct undertaken to conceal a victim’s death after the fact lies beyond the reach of the statute, the 4th U.S. Circuit Court of Appeals has ruled.

Lawrence Florentine murdered his wife Nicole during an interstate road trip that began in North Carolina. After killing Nicole, Florentine attempted to conceal his crime by dousing her body with gasoline, setting it aflame and then burying her remains in a shallow grave.

Though the precise time and place of Nicole’s death is unknown, motel records and cell phone data show that Florentine and Nicole traveled through North Carolina and South Carolina between June 3 and June 9, 2020.

Surveillance footage from June 11 shows Florentine buying a gasoline can and a shovel near a Kentucky cemetery. On June 13, a groundskeeper at the cemetery called the police to report a suspicious gravesite.

Police found a gasoline can near a makeshift grave and uncovered the charred remains of a body that was eventually identified as Nicole’s.

The government charged Florentine with four felony counts: interstate domestic violence resulting in death, use of a firearm during a crime of violence to cause death, obstruction of justice and use of fire to commit a felony (i.e., interstate domestic violence).

Although the precise time and place of Nicole’s death are unknown, it is undisputed that she was dead when Florentine burned her corpse.

Florentine argued that because he did not “use fire” until after Nicole died, he did not “use fire” to commit the crime of interstate domestic violence.

Denying the motion, the district court concluded that the crime of interstate domestic violence resulting in death is a continuing offense that is not necessarily completed at the time of the victim’s death.

The district court sentenced Florentine to 360 months’ imprisonment, stating expressly that it would have imposed the same sentence even if it had dismissed the count of fire use.

Florentine appealed.

Writing for the court in United States v. Florentine, Judge Nicole G. Berner – joined by Judges G. Steven Agee and Stephanie D. Thacker – held that because the crime of interstate domestic violence ends when a victim dies, conduct undertaken to conceal a victim’s death after the fact lies beyond the reach of the statute.

However, while the district court erred in denying Florentine’s motion to dismiss, the court determined that full resentencing was unnecessary.

Section 844(h)(1) requires that fire be used in the commission of a felony, so the question for the court was when the commission of the predicate felony – interstate domestic violence, Section 2261(a)(2) – came to an end.

The crime of interstate domestic violence does not necessarily end after a perpetrator has ceased physical violence against his victim, the court noted. Case law has established that Section 2261(a)(2) encompasses certain conduct carried out even days after physical abuse has ended, but precedent does not “suggest that the statute applies to conduct that occurs after a victim has been killed. This court’s precedent provides no indication that a Section 2261(a)(2) offense may continue after a victim dies. Such an interpretation is also unsupported by the statutory text.”

The government’s position that the crime of interstate domestic violence can continue beyond the victim’s death would require the court to include transporting the corpse of a deceased former spouse, but the statute doesn’t cover transportation writ large, the court said, as it specifically prohibits “caus[ing] a spouse [or partner] … to travel in interstate commerce.”

“Once a person has died, they are no longer anyone’s ‘spouse’ or ‘partner,’” the court wrote. “The interstate transport of a corpse, therefore, necessarily falls outside the scope of Section 2261(a)(2).”

Alternatively, the court would need to interpret the concealment of a Section 2261(a)(2) crime as part of the offense itself.

“Even a continuing offense reaches an endpoint, however,” the court said. “Concealment generally falls beyond that endpoint, and Section 2261(a)(2) is no exception. …

“The successful accomplishment of interstate domestic violence resulting in death does not ‘necessitate[] concealment.’ Accordingly, Florentine’s attempt to conceal his crime was not part of the offense itself. The crime of interstate domestic violence, as defined by 18 U.S.C. § 2262(a)(2), ends when the victim dies. Because conduct undertaken to conceal the victim’s death is beyond the reach of the statute, the district court erred in denying Florentine’s motion to dismiss Count 4.”

Despite this conclusion, the court agreed with the government that resentencing was not necessary.

“The district court made it abundantly clear that it would have imposed the same total sentence even if it had erred in denying Florentine’s motion to dismiss Count 4,” the court said, with the district court spending eight pages of a hearing transcript explaining why a 360-month sentence was appropriate regardless of the applicability of Section 844(h)(1).

Though a 360-month sentence for the three other counts would represent a substantial upward variance from the Sentencing Guidelines range, “[t]he district court carefully considered the facts of this case in analyzing each of the 3553(a) factors.”

The court remanded for the limited purpose of entering an amended judgment.

Joshua S. Kendrick of Kendrick & Leonard in Greenville, who represented Florentine, did not respond to a request for comment.

Neither did the U.S. Attorney’s Office, represented by Greenville attorney Leesa Washington.