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United States v. Campbell

United States District Court, E.D. Virginia, Richmond Division

December 18, 2018

UNITED STATES OF AMERICA
v.
ALHAKKA CAMPBELL, Defendant.

          MEMORANDUM OPINION (DEFENDANT'S MOTION TO DISMISS COUNT TWO OF THE INDICTMENT)

          Henry E. Hudson Senior United States District Judge

         The Defendant, Alhakka Campbell ("Defendant"), was indicted by a federal grand jury for armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) and 2, and using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Presently before the Court is the Defendant's Motion to Dismiss Count Two of the Indictment for failure to plead a prosecutable offense. The government has responded and argument was heard on December 7, 2018.

         The Defendant's core contention is that the charge of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), fails to qualify categorically as a predicate crime of violence under the black letter language of 18 U.S.C. § 924(c). This argument trips at the starting gate because the United States Court of Appeals for the Fourth Circuit found armed bank robbery to be a crime of violence in United States v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016). The Fourth Circuit "held in McNeal that the term 'intimidation,' as used in the federal bank robbery statute, required the threatened use of physical force, and that, therefore, the federal crime of bank robbery categorically qualified as a crime of violence under the force clause of Section 924(c)(3)." United States v. Evans, 848 F.3d, 242, 247 (4th Cir. 2017) (citing McNeal, 818 F.3d at 153). Section 924(c) provides an enhanced period of imprisonment for using, carrying, or brandishing a firearm in furtherance of a crime of violence.

         Second, the analytical framework underlying the Defendant's argument is dependent on the assumption that the sufficiency of an indictment to state a crime of violence is reviewable, pretrial, employing a categorical analysis framework. Under this narrowly-focused lens, the Court's analysis is both informed and constrained by the elements of the underlying statute. This approach requires the Court to disregard the allegations in the Indictment that a firearm was displayed during the robbery, endangering the lives of bank employees and customers. Count One of the Indictment reads as follows:

On or about November 17, 2017, in the Eastern District of Virginia, the defendants, ALHAKKA CAMPBELL and JOHN CAMPBELL, aided and abetted by one another, did knowingly and unlawfully, by force and violence, and by intimidation, take from the person and presence of another, namely employees of the Wells Fargo Bank located at 5610 Brook Road, Henrico, Virginia, approximately $5, 197.00 in United States currency, money belonging to and in the care, custody, control, management and possession of the Wells Fargo Bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in committing such offense, the defendants did assault and put in jeopardy the life of other persons, namely bank employees and customers, by the use of a dangerous weapon, that is, a firearm.
(In violation of Title 18, United States Code, Sectios 2113(a), 2113(d), and 2.)
Count Two of the Indictment reads as follows:
On or about November 17, 2017, in Henrico, Virginia, in the Eastern District of Virginia, the defendants, ALHAKKA CAMPBELL and JOHN CAMPBELL, aided and abetted by one another, did knowingly and unlawfully use, carry, and brandish a firearm during and in relation to a crime of violence for which the defendants may be prosecuted in a court of the United States, that is, armed bank robbery, as charged in Count One of this Indictment. (In violation of Title 18, United States Code, Sections 924(c)(1)(A) and 2.)

(Indictment 1-2, ECF No. 1.)

         Before turning to the substance of the Defendant's argument, it is important to clarify the origin and purpose of the categorical analysis regimen deployed by the Defendant to challenge Count Two of the Indictment. The value and utility of employing a categorical analysis in evaluating the present firearm charge before the Court is questionable since the violent nature of the alleged robbery will be demonstrated by the evidence at trial. As the Government notes in its Response in Opposition, "[a] fact-finder can readily determine whether an underlying offense ... by its nature, involves the use of physical force in the course of its commission without needing to consider what the ordinary case of that offense may be." (Gov't's Resp. Opp'n Def.'s Mot. Dismiss Count Two 14, ECF No. 29 (hereinafter "Gov't's Resp.") (internal quotation marks omitted).)

         Aside from its narrow application in sentencing proceedings, where the violent nature of a prior conviction is at issue, the categorical approach has rarely been deployed to determine pretrial whether a crime qualifies as a § 924(c) crime of violence. Its application requires a court to confine its analysis to the statutory elements of offense of conviction, typically determined from a cold record of a prior court proceeding. The utility of the categorical approach is best explained by its genesis.

         In unveiling the concepts of categorical and modified categorical analyses, the United States Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), focused on the sentencing enhancements provided under the Armed Career Criminal Act (the "ACCA"). The ACCA provided for enhanced punishment for persons with three previous convictions for "a violent felony or a serious drug offense." Id. at 582 (citing 18 U.S.C. § 924(e)(1)). In discussing the application of the enhancements provided in 18 U.S.C. § 924, the Supreme Court concluded that "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Id. at 600. The Court in Taylor went further to explain the rationale underlying the restrictive scope of the categorical analysis, particularly in light of the limited record before the sentencing court.

If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history-----[T]he practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant's actual conduct would fit the generic definition of [a crime of violence], the trial court would have to determine what that conduct was. In some cases, the indictment or other charging paper might reveal the theory or theories of the case presented to the ...

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