United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION & ORDER
S. DAVIS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' post-trial
motions seeking: (1) leave to file late motions, ECF Nos.
444, 447; and (2) to set aside their verdicts as to certain
counts and/or to obtain a new trial, ECF Nos. 445,
448.Defendants' motions seeking leave to
file late motions are GRANTED to the extent
they seek leave to file the motions already before the Court
predicated on the Supreme Court's recent decisions in
Carpenter v. United States, 138 S.Ct. 2206 (2018),
and Sessions v. Dimaya, 138 S.Ct. 1204
November 1, 2018, after receiving supplemental briefing
relevant to the Dimaya motions, this Court conducted
a hearing on the merits of Defendants' Carpenter
and Dimaya motions. At such hearing, the Court fully
addressed Defendants' motions for a new trial predicated
on Carpenter, formally DENYING such
motions from the bench based on the application of the
"good faith exception" to the warrant requirement.
Additionally, the Court denied in part, and took under
advisement in part, Defendants' motions predicated on
Dimaya. For the reasons discussed below,
Defendants' Dimaya motions are
GRANTED with respect to Count 30, and are
DENIED in all other respects.
motions challenge numerous § 924(c) "firearm in
furtherance of a crime of violence" convictions
predicated on the definition of "crime of violence"
set forth in 18 U.S.C. § 924(c)(3), arguing that the
Defendants' underlying offenses of conviction do not
satisfy the § 924(c)(3)(A) "force clause" and
that the § 924(c)(3)(B) "residual clause" is
unconstitutionally vague as established by Dimaya.
lengthy analysis on the record at the hearing, the Court
concluded that Circuit precedent requires this Court to apply
the "categorical approach" to both prongs of §
924(c) (3), even though such approach has severe drawbacks.
See In re Irby, 858 F.3d 231, 233-34 (4th Cir.
2017); see also United States v. Eshetu, 898 F.3d
36, 37 (D.C. Cir. 2018); United States v. Davis, 903
F.3d 483, 485 (5th Cir. 2018). Applying such categorical
approach, the Court then found that the § 924(c) (3) (B)
residual clause is unconstitutionally vague. Dimaya,
138 S.Ct. at 1223/ In re Hubbard, 825 F.3d 225, 231
n.3 (4th Cir. 2016).
such finding, the Court rejected, on the record,
Defendants' arguments challenging the § 924(c)
crimes charged in Counts 4, 6, 9, 12, 13, 16, 19, 21, 23, 25
and 28 based on Defendants' contention that "VICAR
murder" and "VICAR attempted murder," as
cross-referenced to Virginia law, are not "crimes of
violence" under the § 924(c)(3)(A) force clause. In
reaching such ruling, the Court first concluded, with little
analysis needed, that "generic" murder constitutes
a "crime of violence" under the § 924(c) (3)
(A) force clause. Umana v. United States, 229
F.Supp.3d 388, 395 (W.D. N.C. 2017); see Irby, 858
F.3d at 237; 18 U.S.C. § 1111(a); United States v.
Darden, ___ F.Supp.3d. ___, No. 3:17crl24, 2018 WL
5784057, at *27 (M.D. Tenn. Nov. 2, 2018) ("It cannot be
seriously argued that murder [under 18 U.S.C. § 1111(a)]
is anything other than a crime of violence . . . .").
Court then considered murder as punished under the
cross-referenced Virginia statute, noting that the Court
interpreted the law as requiring it to consider the elements
of such state law crime in order to ensure that the federal
VICAR murder offenses at issue are proper predicate
violent crimes that could support a conviction under
§ 924(c)(3)(A). Umana, 229 F.Supp.3d at 395. In
analyzing Virginia's murder statute, Va. Code §
18.2-32, this Court concluded that all violations of such
statute require the use, attempted use, or threatened use
of physical force against another, thereby concluding
that a violation of Va. Code § 18.2-32 satisfies the
violent force requirement of § 924(c)(3)(A).
extent that the Court failed to clearly state on the record
that its analysis of Virginia law leads to the conclusion
that VICAR murder, as cross-referenced to Virginia law, is
itself a "crime of violence" under §
924(c)(3)(A), the Court expressly makes such finding now.
Stated differently, in concluding that all violations of
§ 18.2-32 require a malicious killing, committed through
the application of violent force, the Court finds that the
elements of Virginia murder are consistent with the elements
of "generic" murder, to include first degree murder
by starvation, and second degree murder committed with the
degree of "malice" necessary to distinguish murder
from manslaughter under Virginia law. Essex v. Com.,
228 Va. 273, 280-81, 322 S.E.2d 216, 219-20 (1984);
see Umana, 229 F.Supp.3d at 394-97. Such
finding leads to the conclusion that each federal VICAR
murder conviction in this case is itself a "crime of
violence" under the force clause set forth in §
924(c) (3) (A) .
same reasons, the federal VICAR attempted murder
counts for which a guilty verdict was returned in this case
are "crimes of violence" under the force clause set
forth in 924(c)(3)(A). See 18 U.S.C. § 924(c)(3)(A)
(requiring the predicate crime to have, "as an element
the use, attempted use, or threatened use of
physical force against the person or property of
another"). Accordingly, the Court reaffirms its oral
DENIALS of Defendants' challenges to all
of the § 924(c) convictions in this case for which the
jury found that the firearm was used in furtherance of murder
or attempted murder, which applies to all § 924(c)
convictions other than Count 30.
addition to the detailed rulings the Court made on the
record, the Court took under advisement Defendants'
motions challenging Count 30 (possession and discharge of a
firearm in furtherance of a crime of violence), as well as
the related issue as to whether the claimed infirmity in
Count 3 0 also undercuts the viability of Defendants'
convictions on Counts 8, 15, 18, 27 and 29, all of which
charge Defendants with VICAR assault with a dangerous weapon
in violation of 18 U.S.C. § 1959(a). The Court addresses
such matters below, in reverse order.
addressing Counts 8, 15, 18, 27 and 29, as discussed in this
Court's prior Order, ECF No. 496, and at the November 1,
2018 hearing, this Court's consideration of
Defendants' post-trial motions, attacking the Count 30
convictions for possessing a firearm in furtherance of a
crime of violence based on the Count 29 VICAR assault with a
dangerous weapon count, necessarily required the Court to
carefully analyze the elements of Count 29 to determine
whether such count satisfied the § 924(c)(3)(A) force
clause applicable to Count 30. Engaging in such analysis
raised questions with the Court as to whether Va. Code §
18.2-282 was a valid predicate state-law crime for a VICAR
assault with a dangerous weapon conviction under 18 U.S.C.
§ 1959(a). The Court therefore asked the parties to
brief and argue such issue.
considered the parties' briefs and oral presentations,
the Court finds that any challenge to the viability of the
§ 1959(a) VICAR assault with a dangerous weapon offenses
charged in Counts 8, 15, 18, 27 and 29 predicated on the
propriety of a cross-reference to Va. Code § 18.2-282
were waived by Defendants, as expressly asserted by the
Government at oral argument.Pursuant to Rule 12 of the Federal
Rules of Criminal Procedure, a motion challenging "a
defect in the indictment or information, including: . . .
failure to state an offense," must be raised
"by pretrial motion if the basis for the motion
is then reasonably available and the motion can be determined
without a trial on the merits." Fed. R. Crim. P.
12(b)(3) (emphasis added). Such Rule goes on to outline the
"Consequences of Not Making a Timely Motion Under Rule
12(b) (3)," which are as follows: "If a party does
not meet the deadline for making a Rule 12(b)(3) motion, the
motion is untimely" and may be considered only if the
"party shows good cause." Fed. R. Crim. P.
the legal test governing a challenge to the § 1959(a)
charges would require the Court to consider the
scope/elements of the "generic" definition of the
charged violent crime (here "assault with a dangerous
weapon") and determine whether the cross-referenced
Virginia state-law crime falls within such generic
definition, and it therefore does not turn on the litigated
facts of the case. See United States v. Le, 316
F.Supp.2d 355, 361-62 (E.D. Va. 2004) (citing Taylor v.
United States, 495 U.S. 575, 599 (1990)); see also
Descamps v. United States, 570 U.S. 254, 260-61 (2013).
Although § 1959(a) is plainly directed at punishing the
commission of violent crimes in aid of racketeering,
determining whether a defendant violates § 1959(a) does
not require an analysis of the statutory term
"crime of violence," as defined in either 18 U.S.C.
§ 16(b) or 18 U.S.C. § 924(c)(3), thereby rendering
the holding in Dimaya irrelevant to the viability of
the § 1959(a) charges in this case. Accordingly, the
recent decision in Dimaya does not provide
"good cause" for Defendants' failure to raise a
pretrial challenge to the § 1959(a) counts. Moreover,
Defendants have not otherwise demonstrated "good
cause" for failing to raise such claim pre-trial, and in
fact, did not raise such claim in their post-trial motions,
with such issue instead being raised by the Court for
discussion. Accordingly, consistent with the Government's
opposition to any further motions not directly related to
Dimaya/Carpenter, ECF No. 464, at 3, as
well as the "waiver" argument advanced by the
Government at the hearing, the Court finds that it is
improper to reach the merits of the untimely challenge to the
§ 1959(a) counts.
addressing the validity of Defendants' convictions on
Count 30, such post-trial claim is directly impacted by the
Supreme Court's intervening decision in Dimaya.
For the reasons discussed on the record at the November 1,
2018 hearing, and as recapped above, this Court finds that
Circuit precedent requires the application of the
"categorial" approach to both prongs of
§ 924(c)(3), In re Irby, 858 F.3d at 233-34,
and under such approach, Dimaya mandates the finding
that the § 924(c) (3) (B) "residual clause" is
void as unconstitutionally vague, In re Hubbard, 825
F.3d at 231 n.3.
Dimaya precludes the Government from relying on the
"residual clause," the validity of all three
Defendants' Count 30 convictions turns on whether either
of the two purported "crimes of violence" on which
such count is alternatively predicated 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. § 924(c) (3) (A) . As found by the jury on the
special verdict form, Count 3 0 is predicated on Count One
(RICO Conspiracy) and Count 29 (VICAR assault with a
dangerous weapon). As previously noted, Count 30 is the only