FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10169 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00209-HG

FRED NOBRIGA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, District Judge, Presiding

Argued and Submitted April 8, 2005

Submission Withdrawn January 3, 2006

Resubmitted December 29, 2006

Pasadena, California

Filed December 29, 2006

Before: Harry Pregerson,* Kim McLane Wardlaw, and

Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion

*Judge Harry Pregerson was drawn to replace Judge James M. Fitzgerald, Senior United States District Judge for the District of Alaska, who sat

by designation. Judge Pregerson has read the briefs, reviewed the record,

and listened to the tape of oral argument held on April 8, 2005. 

20057
COUNSEL

De Anna S. Dotson, Kapolei, Hawaii, for the defendantappellant. 

Edward H. Kubo, Jr., United States Attorney, and Wes Reber

Porter, Assistant United States Attorney, District of Hawaii,

Honolulu, Hawaii, for the plaintiff-appellee.

UNITED STATES v. NOBRIGA 20059
OPINION

PER CURIAM: 

Fred Nobriga appeals the district court’s denial of his

motion to dismiss the indictment. The indictment charged him

with violating 18 U.S.C. § 922(g)(9) by possessing a firearm

after having been previously convicted of a “misdemeanor

crime of domestic violence,” as defined by 18 U.S.C.

§ 921(a)(33)(A)(ii). We reverse the district court’s denial of

Nobriga’s motion to dismiss.

I.

Nobriga was indicted in 2003 by a federal grand jury in

Hawaii for being a person previously convicted of a “misdemeanor crime of domestic violence” in possession of a firearm. Section 921(a)(33)(A)(ii) defines that term as any

misdemeanor that:

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,

committed by a current or former spouse, parent, or

guardian of the victim, by a person with whom the

victim shares a child in common, by a person who

is cohabiting with or has cohabited with the victim

as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the

victim. 

The predicate offense at issue was Nobriga’s conviction for

Abuse of a Family or Household Member (“AFHM”), in violation of section 709-906(1) of the Hawaii Revised Statutes.

Nobriga had pleaded no contest to AFHM in a Hawaii state

court, and the court found Nobriga guilty “as charged.” 

Nobriga moved to dismiss the federal indictment, claiming

that his underlying AFHM conviction was not for a “misde20060 UNITED STATES v. NOBRIGA
meanor crime of domestic violence,” and that 18 U.S.C.

§ 922(g)(9) was therefore inapplicable. The district court held

that the Hawaii statute was not categorically a “misdemeanor

crime of domestic violence,” but that the charging documents,

together with the judgment, demonstrated that Nobriga

had pleaded to a “misdemeanor crime of domestic violence”

as defined by 18 U.S.C. § 921(a)(33)(A). 

After the district court denied Nobriga’s motion to dismiss,

Nobriga entered into a plea agreement with the government,

reserving the right to appeal the district court’s denial of his

motion to dismiss. The district court sentenced Nobriga to

twenty-seven months’ imprisonment, three years of supervised release, and a “special assessment of $100.” Nobriga

timely appeals.

II.

On appeal, Nobriga argues that neither his conviction under

the Hawaii statute, standing alone, nor the judicially noticeable facts establish that Nobriga and the victim of his Hawaii

offense had the domestic relationship required by

§ 921(a)(33)(A)(ii). His challenge is controlled by our decision in United States v. Belless, 338 F.3d 1063 (9th Cir.

2003). 

[1] In Belless, we held that “[§ 922(g)(9)] does not require

that the misdemeanor statute charge a domestic relationship as

an element. It requires only that the misdemeanor have been

committed against a person who was in one of the specified

domestic relationships.” Id. at 1066. In reaching this conclusion, Belless joined “all seven of our sister circuits to have

spoken to the issue.” Id. (citing White v. Dep’t of Justice, 328

F.3d 1361 (Fed. Cir. 2003); United States v. Shelton, 325 F.3d

553 (5th Cir. 2003); United States v. Kavoukian, 315 F.3d 139

(2d Cir. 2002); United States v. Barnes, 295 F.3d 1354 (D.C.

Cir. 2002); United States v. Chavez, 204 F.3d 1305 (11th Cir.

UNITED STATES v. NOBRIGA 20061
2000); United States v. Meade, 175 F.3d 215 (1st Cir. 1999);

United States v. Smith, 171 F.3d 617 (8th Cir. 1999)). 

[2] Thus, under Belless, the domestic relationship element

need not be an element of the predicate offense. Rather, it is

an element of the federal offense under § 922(g)(9), to be

proven at trial. Cf. Kavoukian, 315 F.3d at 145 (noting that

the domestic relationship element is an element of the federal

crime). As the government could have proven the necessary

domestic relationship at trial, the mismatch between the

Hawaii and federal domestic violence statutes is not a basis

for invalidating the indictment.1See United States v. Jensen,

93 F.3d 667, 669 (9th Cir. 1996) (“[A] defendant may not

properly challenge an indictment, sufficient on its face, on the

ground that the allegations are not supported by adequate evidence.” (internal quotation marks omitted)).2

III.

Nobriga also challenges the district court’s denial of his

motion to dismiss the indictment on the basis that his AFHM

conviction did not involve the “violent use of force,” as

required under § 921(a)(33)(A)(ii). See Belless, 338 F.3d at

1068 (holding that “[t]he phrase ‘physical force’ in the federal

definition at 18 U.S.C. § 921(a)(33)(A)(ii) means the violent

use of force against the body of another individual”). 

1Nobriga’s appeal is restricted to the denial of the motion to dismiss the

indictment, so we do not reach any question concerning the validity of the

plea, including whether the factual basis established with regard to the requisite domestic relationship was adequate. See Fed. R. Crim. P. 11(b)(3).

2Kavoukian suggested that an indictment could be insufficient if it failed

specifically to allege the domestic relationship element. Kavoukian, 315

F.3d at 145. We do not decide whether the indictment was insufficient on

this basis, however, because, as noted, Nobriga did not raise this question.

See United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an

indictment do not deprive a court of its power to adjudicate a case.”);

United States v. Velasco-Medina, 305 F.3d 839, 845-46 (9th Cir. 2002)

(holding that post-Cotton, a district court does not lack jurisdiction when

an indictment fails to allege an element of the federal offense). 

20062 UNITED STATES v. NOBRIGA
[3] Section 709-906(1) of the Hawaii Revised Statutes does

not necessarily require a “violent use of force.” In addition to

making it unlawful “to physically abuse a family or household

member,” the statute also proscribes “refus[ing] compliance

with the lawful order of a police officer,” an offense that specifies no use of force, violent or otherwise. Under the modified

categorical approach derived from Taylor v. United States,

495 U.S. 575, 602 (1990), however, the record establishes that

Nobriga necessarily pleaded guilty to a “violent use of force.”

As the district court concluded, the charging papers and the

judgment of conviction make clear that Nobriga pleaded

guilty to “physically abus[ing] a family or household member,” not to “refus[ing] compliance with a lawful order of a

police officer.” 

[4] Still, Hawaii law recognizes that section 709-906(1)’s

“physically abuse” prong can be satisfied with a reckless, as

opposed to intentional, use of force. See State v. Eastman, 913

P.2d 57, 66 (Haw. 1996); see also State v. Miller, 98 P.3d

265, 266 n.1 (Haw. Ct. App. 2004). We recently held that

crimes that involve the reckless use of force cannot be considered crimes of violence. See Fernandez-Ruiz v. Gonzales, No.

03-74533, slip op. 17851, 17868 (9th Cir. Oct. 26, 2006).

Fernandez-Ruiz so held in the context of 18 U.S.C. § 16(a),

which defines a “crime of violence” as “an offense that has

as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” 18

U.S.C. § 16(a). Section 921(33)(A)(ii) does not use precisely

the same language as § 16(a); in particular, the former provision does not contain the words “against the person or property of another.” Nevertheless, our caselaw has interpreted

§ 921(33)(A)(ii)’s “physical force” language as requiring “the

violent use of force against the body of another individual,”

see Belless, 338 F.3d at 1068 (emphasis added), as have all

the other circuits that have addressed the question, see United

States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006) (writing that the plain meaning of “physical force,” for purposes

of § 921(33)(A)(ii), is “[p]ower, violence, or pressure directed

UNITED STATES v. NOBRIGA 20063
against another person’s body); United States v. Rogers, 371

F.3d 1225, 1228-29 (10th Cir. 2004) (writing that a prior conviction under § 921(33)(A)(ii) demonstrates a “propensity for

the use of physical violence against others”); United States v.

Nason, 269 F.3d 10, 16 (1st Cir. 2001) (characterizing “physical force,” for purposes of § 921(33)(A)(ii), as “power, violence, or pressure directed against another person’s body”).

The holding of Fernandez-Ruiz, therefore, logically extends

to the interpretation of § 921(33)(A)(ii).

[5] Because nothing in the record establishes that Nobriga

acted with anything other than recklessness, his motion to dismiss the indictment should have been granted. 

REVERSED. 

20064 UNITED STATES v. NOBRIGA