United States v. Barnaby
| Decision Date | 08 July 2021 |
| Docket Number | 18-CR-33 (S-2) (NGG) |
| Parties | UNITED STATES OF AMERICA v. ANDRE BARNABY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
This is a criminal prosecution charging Defendants with racketeering violations of the Hobbs Act, and unlawful use or possession of firearms. Pending before the court are motions to dismiss four firearm-related charges predicated on attempted Hobbs Act robbery, after the Second Circuit vacated and remanded this court's prior decision dismissing those counts from the indictment. See United States v. Cheese, 849 Fed.Appx. 19, 20 (2d Cir. 2021). Also pending are motions to dismiss one firearm-related charge predicated on racketeering; motions to dismiss four counts of committing physical violence in furtherance of a plan to commit Hobbs Act robbery; a motion to dismiss one firearm-related charge predicated on Hobbs Act robbery; motions to sever; motions to suppress physical evidence, post-arrest statements, and cellphone data; and various discovery and disclosure motions.[1]
For the reasons stated below, the motions to dismiss the firearm-related counts are DENIED; the motions to dismiss the counts for committing physical violence under the Hobbs Act are GRANTED; the motions to suppress are DENIED; the motions for a bill of particulars are DENIED; and motions to sever and to compel discovery are DENIED as premature with leave to renew.
The court assumes familiarity with the factual and procedural history of this case and summarizes that history only insofar as it is necessary to resolve the pending motions.
On January 18, 2018, a grand jury in the Eastern District of New York returned a 3-count indictment (the “First Indictment”) against three defendants. (First Indictment (Dkt. 17).) On July 11, 2019, the Government filed a 14-count superseding indictment (the “First Superseding Indictment”) against 17 defendants. (First Superseding Indictment (Dkt. 71).) The First Superseding Indictment charged various combinations of defendants with racketeering, predicated on twelve underlying racketeering acts; Hobbs Act robbery; attempted Hobbs Act robbery; and firearm-related charges predicated on racketeering, attempted Hobbs Act robbery, and actual Hobbs Act robbery. (See id.)
On August 7, 2019, Defendant Constantin Cheese moved to dismiss one firearm count predicated on attempted Hobbs Act robbery from the First Superseding Indictment. (See Cheese Mot. to Dismiss (Dkt. 189).) Four other defendants joined his motion, challenging the same charges against them. On February 12, 2020, this court dismissed those counts on the grounds that attempted Hobbs Act robbery is not a predicate “crime of violence” for 18 U.S.C. § 924(c) liability under the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019). See United States v. Cheese, No. 18-cr-33-2 (NGG), 2020 WL 705217 (E.D.N.Y. Feb. 12, 2020). The Government appealed. On June 7, 2021, the Second Circuit vacated this court's order and remanded for further proceedings, consistent with its recent holding in United States v. McCoy, 995 F.3d 32, 55 (2d Cir. 2021). See Cheese, 849 Fed.Appx. at 20.
While the appeal was pending, the Government filed the operative 20-count second superseding indictment (the “Second Superseding Indictment”). (Second Superseding Indictment (Dkt. 373).) In the Second Superseding Indictment, the Government reasserts the charges from the preceding indictment and asserts six new charges, including four added counts for committing physical violence in furtherance of a plan to commit Hobbs Act robbery. (See id.)
The Second Superseding Indictment alleges that Defendants are members of the Makk Balla Brims, a set of the Bloods gang based in the South Jamaica neighborhood of Queens, New York, who participated, in various combinations, in a series of related actual and attempted robberies between May and December 2017. The alleged events are summarized below:
In connection with the allegations, various combinations of defendants are charged with racketeering (Count One) (id. ¶¶ 8-9); unlawful use of firearms in furtherance of racketeering (Count Two) (id. ¶ 38); Hobbs Act robbery (Counts Three, Five, and Ten) (id. ¶¶ 39, 41, 46); unlawful use of firearms in furtherance of Hobbs Act robbery (Counts Four, Six, and Eleven) (id. ¶¶ 40, 42, 47); attempted Hobbs Act robbery (Counts Seven, Twelve, Fifteen, and Eighteen) (id. ¶¶ 43, 48, 51, 54); committing physical violence in furtherance of a plan to commit Hobbs Act robbery (Counts Eight, Thirteen, Sixteen, and Nineteen) (id. ¶¶ 44, 49, 52, 55); and unlawful use of firearms in furtherance of the attempted Hobbs Act robbery counts and the committing physical violence under the Hobbs Act counts (Counts Nine, Fourteen, Seventeen, and Twenty) (id. ¶¶ 45, 50, 53, 56).
Defendants Brandon Darby, Antonio Davis, Avery Mitchell, Nahjuan Perry, James Roberson, and Shamel Simpkins (the “Racketeering Defendants”) move to dismiss Count Two of the Second Superseding Indictment, which charges them with the unlawful use of firearms in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). They argue that racketeering, as it is alleged here, is not a crime of violence under the statute. (Darby Mot. to Dismiss (Dkt. 403); Davis Mot. to Dismiss (Dkt. 420); Mitchell Mot. to Dismiss (Dkt. 409); Perry Mot. to Dismiss (Dkt. 410); Roberson Mot. to Dismiss (Dkt. 402); Simpkins Mot. to Dismiss (Dkt. 414).) As explained below and contrary to the Racketeering Defendants' assertion, the racketeering charge (Count One) at issue is predicated on acts that qualify as crimes of violence under the statute, and therefore their motions to dismiss Count Two are denied. See United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009) ().
Section 924(c) defines a “crime of violence” as a felony that:
18 U.S.C. § 924(c)(3). In United States v. Davis, the Supreme Court held that Subsection B (“the Residual Clause”) was unconstitutionally vague. 139 S.Ct. at 2336. As a result, a “crime of violence” under Section 924(c) must satisfy Subsection (A) such that the crime “has as an element the use, attempted use, or threatened use of physical force.” 18 U.S.C. § 924(c)(3)(A) (“the Elements Clause”).
The court applies the “categorical approach” to determine whether a charge satisfies the Elements Clause. See United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018), cert. denied, 139 S.Ct. 844 (2019) (). The categorical approach “involves two steps: first [the court] identif[ies] the elements of the predicate conviction by determining the minimum criminal conduct a defendant must commit to be convicted; second, [the court] determine[s] whether that minimum criminal conduct has as an element the use, attempted use, or threatened use of physical force.” United States v. Moore, 916 F.3d 231, 240 (2d Cir. 2019).[3] Determining the minimal conduct necessary for conviction “requires more than the application of legal imagination to the statute's language.” Hill, 890 F.3d at 56 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). “To show that a particular reading of the statute is realistic, a defendant must at least point to his own case or other cases in which the courts in fact did apply the statute in the manner for which he argues.” Id.[4]
The racketeering statute provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). A “pattern of...
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