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United States v. Anthony

United States District Court, W.D. Virginia, Danville Division

July 23, 2019

UNITED STATES OF AMERICA
v.
DASHAWN ROMEER ANTHONY, et al.? Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski, Chief United States District Judge.

         This matter comes before the court on a number of motions by defendants to dismiss and/or merge certain counts of the Indictment. ECF No. 5. These motions require the court to tread down the thorny path of the categorical approach, as enunciated as recently as June 24, 2019 in United States v. Davis, No. 18-431 (June 24, 2019).

         I.

         This multi-defendant, multi-count RICO prosecution began on June 11, 2018 when a federal Grand Jury issued two indictments bringing charges against members of the Rollin 60s Crips street gang, the Milla Bloods street gang, and gang associates on violations of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962, Violent Crimes in Aid of Racketeering ("VICAR"), 18 U.S.C. § 1959, and several other factually related charges. ECF No. 5. These cases are captioned United States v. Davis et al., 4:18-cr-11 (bringing charges against members of the Rollin 60s Crips and associates) and United States v. Anthony et al.. 4:18-cr-12 (bringing charges against members of the Milla Bloods street gang and associates).[1] The United States alleges that, in the summer of 2016, members of the Rollin 60s and Milla Bloods collaborated to facilitate criminal activities in the Danville, Virginia area. See Id. at 6 (describing alleged racketeering conspiracy). This collaboration resulted in (1) the attempted murders of the "Philly Boys" at North Hills Court on June 15, 2016, resulting in the assault and attempted murder of Armonti Womack and Dwight Motel Harris; and (2) the attempted murder of Justion Wilson and murder of Christopher Motley at North Hills Court on August 20, 2016.14 at 11-17.

         Since the return of the Indictment, four of the original eight defendants have entered guilty pleas (Tanasia Lashae Coleman, ECF No. 187; Demetrius Allen Staten, ECF No. 191; Dashawn Romeer Anthony, ECF No. 249; and Jermay Smith Jr., ECF No. 365). The remaining defendants[2] have filed a series of motions to dismiss, challenging counts alleging violation of 18 U.S.C. §§ 924(c), 924(j), and 1959. The government has responded, argument was held in June 8, 2019, and the issue is ripe for consideration.

         II.

         As an overview, the indictment in this gang case charges in Count 1 a RICO conspiracy and in Counts 2 through 15 various violent crimes associated with three shootings in Danville, Virginia in the summer of 2016. As to each shooting, three categories of federal crimes are alleged:

1. VICAR Murder or Attempted Murder (Counts 2, 6, 10, and 12);
2. VICAR Assault with a Dangerous Weapon (Counts 4, 8, and 14); and
3. Use of a Firearm During a VICAR crime, Murder, Attempted Murder, and Assault with a Dangerous Weapon (Counts 3, 5, 7, 9, 11, 13, and 15).

         A.

         On May 31, 2019, the government filed a Motion to Dismiss Counts 5, 9, and 15 without prejudice. ECF No. 353. Counts 5, 9, and 15 charge use of a firearm during an assault with a dangerous weapon. The government's motion is GRANTED and Counts 5, 9, and 15 are DISMISSED.

         B.

         There are two principal issues surrounding the remaining motions to dismiss: (1) whether counts charging violations of 18 U.S.C. § 924(c) predicated on murder or attempted murder should be dismissed because "murder," as defined by Virginia Code § 18.2-32, categorically speaking, criminalizes conduct that is broader than that covered by 18 U.S.C. § 924(c)(3)(A); and (2) whether the VICAR assault with a dangerous weapon counts must be dismissed because the underlying Virginia brandishing statute, Va. Code § 18.2-282, sweeps too broadly to serve as a VICAR predicate.

         III.

         The court first examines 18 U.S.C. § 924(c), as predicated on Va. Code 18.2-32.

         A. 18 U.S.C. § 924(c) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of such crime, possesses a firearm" shall be sentenced to a five-year minimum term of imprisonment "in addition to the punishment provided for such crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(3)(A). The statute defines a crime of violence as "an offense that is a felony" and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or
(B) that by its nature, involves such a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

         Each of the above clauses provides a different basis for determining whether a crime is a crime of violence. Section 924(c)(3)(A) has been variously referred to as the "force clause," "use-of- force clause," or "elements clause."[3] Section 924(c)(3)(B) is known as the "residual clause."

         The elements clause requires courts to use the categorical approach to determine "whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of force." United States v. Simms, 914 F.3d 229, 233 (4th Or. 2019). In conducting this analysis, the court must "focus on the minimum conduct required to sustain a conviction for the state crime." United States v. Doctor., 842 F.3d 306, 308 (4th Cir. 2016). Thus, if the minimum conduct necessary for a violation of the statute does not constitute a crime of violence, then the statute categorically fails to qualify as a crime of violence. United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quoting Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015)).

         In Simms, the Fourth Circuit declared the residual clause of § 924(c)(3)(B) unconstitutionally vague, as other residual clauses with almost identical language in a variety of other statutes had likewise been declared, because it required courts ask whether die "ordinary case" of the offense posed the requisite "substantial risk that physical force against the person or property may be used" without providing any guidance on how to determine the crime's ordinary case. 914 F.3d at 236-37. The Supreme Court's recent opinion in Davis closes the door on the viability of § 924(c)'s residual clause.

         Following Simms and Davis, the criminal conduct at hand must be analyzed under the elements clause of § 924(c)(3)(A) to determine if it constitutes a crime of violence. Considered genetically, [4] if the elements of the underlying offense do not require the use, attempted use, or threatened use of physical force under the elements clause of § 924(c)(3)(A), there can be no separate conviction under § 924(c)(1)(A) for using, carrying, brandishing, or discharging a firearm during or in relation to the underlying offense.

         B.

         To determine if VICAR murder and VICAR attempted murder are crimes of violence under § 924(c)(3)(A), courts have taken different analytical approaches. Some courts assess whether the VICAR predicate offenses, here murder and attempted murder, constitute crimes of violence by using a generic, federal definition of die crime. See United States v. Jones, No. 7:16-cr-30026, 2017 WL 3725636, at *5 (W.D. Va. 2017). and Cousins v. United States., 198 F.Supp.3d 621, 626 (E.D. Va. 2016) (both looking to a federal generic definition of an offense to determine if it is a viable VICAR predicate). The Fourth Circuit has held that generic, federal murder is a crime of violence for § 924(c)(3)(A) purposes. In re Irby, 858 F.3d 231, 237 (4th Cir. 2017) ("Common sense dictates that murder is categorically a crime of violence under the force clause. ... It is absurd to believe that Congress would have intended poisoners and people who use their wits to place someone in the path of an inevitable force to avoid the force clause of § 924(c)."). As such, under this analytical approach, VICAR murder and VICAR attempted murder are crimes of violence under the elements clause of § 924(c)(3)(A).

         Other courts have looked beyond the generic definition of the enumerated VICAR offense to the elements of the crime, state or federal, underlying the VICAR charge. Here, those crimes are Virginia murder and attempted murder, as defined in Va. Code §§ 18.2-32 and 18.2-26. Defendants advocate this approach, arguing that at least one method of murder proscribed by the Virginia statute, murder by starving, does not require the use of force.

         First degree murder in Virginia is "murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction." Va. Code § 18.2-32. "In the context of attempted murder, the evidence must show 'specific intent to kill the victim/" along with an overt act that falls short of the completion of the killing. Secret v. Commonwealth, 296 Va. 204, 225, 819 S.E.2d 234, 248 (2018) (quoting Commonwealth v. Herring,288 Va. 59, 77, 758 S.E.2d 225, 235 (2014)). The overt act "need not. . . be the last proximate act to the consummation ...


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