U.S. v. Cuong Gia Le, 1:03 CR 048(TSE).

• Decision Date: 30 April 2004
• Docket Number: No. 1:03 CR 048(TSE).,1:03 CR 048(TSE).
• Citation: 316 F.Supp.2d 355
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES v. CUONG GIA LE, et al. Defendants.

316 F.Supp.2d 355

UNITED STATES v. CUONG GIA LE, et al. Defendants.

No. 1:03 CR 048(TSE).

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

April 30, 2004.

James Trump, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Frank Salvato, Alexandria, James Goodman Connell, III, Devine & Connell PLC, Fairfax, VA, Marvin D. Miller, Dale W. Dover, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

In this multi-defendant multi-count RICO¹ prosecution, two of the remaining defendants attack counts of the Fifth Superseding Indictment² that allege (i) violent crimes in aid of racketeering activity, in violation of 18 U.S.C. § 1959 (VICAR), and (ii) the use and carrying of a firearm during and in relation to a violent crime in aid of racketeering, in violation of 18 U.S.C. § 924(c). These counts charge defendants with assault with a dangerous weapon in violation of Virginia's malicious or unlawful wounding statute, Va.Code § 18.2-51, or brandishing statute, Va.Code § 18.2-282, in aid of racketeering. Defendants seek dismissal of these counts on the ground that the elements of malicious or unlawful wounding and brandishing under Virginia law do not match — element-by-element — with the elements of assault with a dangerous weapon, as defendants contend is required by § 1959.³ Therefore, the question presented by defendants' dismissal motion is whether counts alleging an assault with a dangerous weapon in violation of state law pursuant to 18 U.S.C. § 1959 must be dismissed if the elements of assault with a dangerous weapon, as that crime is generically defined, do not match — element-by-element — with the elements of the state law allegedly violated. More precisely, the question with regard to counts three, four, seven, sixteen, seventeen, and twenty-three is whether, as defendants contend, it is necessary for the elements of a generic assault with a dangerous weapon to match — element-by-element — with the elements of the crime of brandishing, as defined in Virginia law, Va.Code § 18.2-282. And, the precise question with regard to count twelve is whether, as defendants contend, it is necessary for the elements of a generic assault with a dangerous weapon to match — element-by-element — with the crime of malicious or unlawful wounding, as defined in Virginia law, Va.Code § 18.2-51.

I.

The essential facts underlying the Indictment as a whole may be summarized briefly. To begin, the Indictment alleges that the seven charged defendants, four of whom have already pled guilty, are active members of a criminal enterprise or gang consisting primarily of Vietnamese youth and known as the "Oriental Playboys" or "OPB." The defendants and other OPB members allegedly socialized and lived together and often engaged in acts of violence together. More specifically, according to the Indictment, defendants and other OPB members committed various crimes, including burglary, drug distribution, credit card fraud, murder, assault, robbery, and firearms violations in Virginia, Maryland, and elsewhere between August 2000 and July 2003 for the purposes of enriching OPB members and enhancing the power, status, and position of OPB in the community. Much of the alleged violence perpetrated by OPB members was intended to protect its members from, or to retaliate against, known rival youth gangs, such as the "Dragon Family" and the "Oriental Bloods." Central to the Indictment is the allegation that defendant Cuong Gia Le shot four individuals at the Majestic Restaurant in Falls Church, Virginia on May 13, 2001. This incident is the basis for nine counts against Le and the other six defendants who allegedly assisted Le in fleeing the scene and the area following the murders. Of the remaining three defendants — Le, Loc Tien Nguyen, and Phu Van Ho — Ho allegedly fled from the Majestic Restaurant with Le immediately after the murders and Nguyen allegedly assisted Le in fleeing to New York City shortly thereafter.

The specific counts at issue here are (i) counts three, four, seven, sixteen, seventeen, and twenty-three, all of which allege that defendants committed assaults with a dangerous weapon in violation of Virginia's brandishing statute, Va.Code § 18.2-282 in aid of racketeering,⁴ and (ii) count twelve which alleges that Le committed an assault with a dangerous weapon in violation of Virginia's malicious or unlawful wounding statute, Va.Code § 18.2-51, in aid of racketeering. Each of the counts charging that defendants violated Virginia's brandishing statute, Va.Code § 18.2-282, allege the date and location of the alleged criminal act, but not defendants' specific conduct. The nature of that conduct, however, has been provided through discovery. Specifically, counts three and sixteen charge that Nguyen, Quach, who has since pled guilty, and other unindicted OPB members committed an attempted assault with a dangerous weapon on November 23, 2000 in Falls Church, Virginia.⁵ The government proffers that on this date Nguyen, Quach, and others traveled to Virginia Beach to kill an individual they believed had killed a friend, but that because they could not find that individual, they instead engaged in a confrontation with a group of black males in a parking lot which ended when Nguyen and another OPB member brandished their guns. Counts four and seventeen charge that Le committed an assault with a dangerous weapon on March 26, 2001 in Falls Church, Virginia which, according to the government, occurred when Le brandished a gun and threatened to shoot a rival gang member during a fight between OPB and a rival gang at the Cafe Dang. And counts seven and twenty-three charge that Le and Quach committed an assault with a dangerous weapon in Springfield, Virginia when, according to the government, Le, while traveling in a car with Quach in search of rival gang members, brandished a gun and threatened to kill several members of a rival gang in the parking lot of the Great Wall Restaurant.

Count twelve, the only count that charges a violation of Virginia's malicious or unlawful wounding statute, Va.Code § 18.2-51, alleges that Le committed an assault with a dangerous weapon on May 13, 2001 in Falls Church, Virginia. According to the government, this assault arose from the events at the Majestic Restaurant, during which Le shot and wounded Chung Nguyen, in addition to shooting and killing two other persons.

Defendants seek dismissal of these seven counts of the Indictment on the ground that the elements of Virginia's malicious or unlawful wounding statute, Va.Code § 18.2-51, and brandishing statute, Va.Code § 18.2-282, the state laws that the charged assaults allegedly violated, do not match — element-by-element — with the elements of assault with a dangerous weapon under federal law. Thus, the task here is to determine first, whether it is necessary, as defendants contend, that the elements of the state statutes allegedly violated match — element-by-element — with the elements of assault with a dangerous weapon under federal law and second, whether the elements of the state statutes are sufficiently similar to the elements of assault with a dangerous weapon such that the Indictment's allegations pass muster under § 1959.

II.

Section 1959 provides for the punishment of any individual who "murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do" for the purpose of entering, maintaining, or increasing his position in a criminal enterprise. 18 U.S.C. § 1959 (emphasis added). Thus, to establish a § 1959 offense the following five elements must be established beyond a reasonable doubt:

(1) that the organization is a RICO enterprise;

(2) that the enterprise was engaged in racketeering activity as defined in RICO;

(3) that the defendant had a position in that enterprise;

(4) that the defendant committed the alleged crime of violence in violation of federal or state law; and

(5) that the defendant's general purpose in so doing was to maintain or increase his position in the enterprise.

See United States v. Fiel, 35 F.3d 997, 1003 (4th Cir.1994) (citing United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.1992)); see also United States v. Rahman, 189 F.3d 88, 126 (2d Cir.1999) (setting forth the elements of a § 1959 offense). And, because indictments must allege each essential element of the offense charged,⁶ an indictment charging a violation of § 1959 must allege that the defendant committed a crime of violence in violation of federal law or the law of the state where the offense was committed.⁷ Similarly, the same allegation must be contained in an indictment charging a violation of § 924(c), when the alleged crime of violence during which the defendant allegedly used or carried a firearm is a § 1959 violation.⁸

There is no allegation in the challenged counts of the Indictment that the alleged violent crime violated a federal law.⁹ Instead, the Indictment charges that defendants committed or attempted to commit assaults with a dangerous weapon in violation of Va.Code § 18.2-51, which prohibits malicious or unlawful wounding, or Va.Code § 18.2-282, which prohibits brandishing a firearm.¹⁰ Defendants, therefore, seek dismissal of the challenged counts on the ground that the elements of these state offenses do not precisely match the elements of assault with a dangerous weapon under federal law.

To begin with, it is clear that it is not necessary that the state law alleged to prohibit an assault with a dangerous weapon under § 1959 carry that precise label. In other words, where, as here, an indictment alleges a § 1959 violation based on an assault with a dangerous weapon in violation of Virginia law, it is not necessary that Virginia law...