United States v. Biba

• Citation: 395 F.Supp.3d 227
• Decision Date: 07 November 2016
• Docket Number: 09-cr-836 (DLI)
• Parties: UNITED STATES of America, v. Llesh BIBA, Defendant.
• Court: U.S. District Court — Eastern District of New York

395 F.Supp.3d 227

UNITED STATES of America,

v.Llesh BIBA, Defendant.

09-cr-836 (DLI)

United States District Court, E.D. New York.

Signed November 7, 2016

Filed July 9, 2019

Elizabeth Geddes, United States Attorneys Office, Brooklyn, NY, for United States of America.

OPINION AND ORDER

DORA L. IRIZARRY, Chief Judge:

Llesh Biba ("Defendant") is charged by indictment with conspiracy to commit robbery, attempted robbery, and use of a firearm during crimes of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii) and 1951(a), for his alleged role in two attempted armed robberies committed in August 2006. Defendant now moves to dismiss, either entirely or in part, Count Three and Count Six of the indictment, which are the charges related to use of a firearm during crimes of violence. (See Def. Mot. to Dismiss ("Motion to Dismiss" or "Mot. to Dismiss"), Dkt Entry No. 14.) For the reasons set forth below, the Motion to Dismiss is granted insofar as the charges pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) in Counts Three and Six are dismissed, without prejudice, and the motion otherwise is denied.

BACKGROUND

A. The Charged Conduct

On May 8, 2008, the government filed a sealed complaint against Defendant for his role in two attempted robberies of homes located in Staten Island, New York, and Ansonia, Connecticut. (See Sealed Complaint and Affidavit in Support of an Arrest Warrant ("Complaint" or "Compl."), United States v. Llesh Biba , 08-mj-442, Dkt. Entry No. 1.) The Complaint was supported by, inter alia , consensual recordings made by a confidential informant (the "CI"), of two conversations with one of Defendant's coconspirators (the "CC"). (Id. at ¶¶ 3-5, 12-14.) With respect to the Staten Island attempt, the CC told the CI that on August 17, 2006, Defendant drove him and another man to a home that they believed contained money belonging to a labor union official. (Id. at ¶¶ 3, 13.) As recorded by the CI, the CC and the other man, both of whom were dressed like law enforcement officers, entered the home where they encountered a female caretaker. (Id. at ¶ 13.) After they restrained her, the CC displayed a handgun to the caretaker. (Id. ) When the caretaker managed to escape the restraints, one of the two men tackled her, causing a commotion that alerted the neighbors. (Id. ) The men then allegedly fled the scene, jumped into the car Defendant was driving, and Defendant drove the trio away from the home. (Id. )

The Complaint further alleges that, on August 29, 2006, Defendant was involved in a second attempted robbery, this time of a drug trafficker's residence in Ansonia, Connecticut. (Id. at ¶ 7.) According to an interview investigators conducted with a female witness, Defendant and a co-conspirator entered the witness' apartment with handguns and asked to meet with her landlord who lived upstairs. (Id. ) When Defendant and the co-conspirator met with the landlord outside of the apartment, the pair physically assaulted the landlord, cracking his skull. (Id. at ¶ 7-8.) The witness also allegedly suffered injuries when she attempted to intervene in the assault and either Defendant or his co-conspirator hit her in the head with a handgun. (Id. ) The two men later ran down the street to a vehicle, which took them away from the scene. (Id. at ¶ 8.)

B. Defendant's [Redacted] Subsequent Flight to Canada

[Redacted]

[Redacted] Defendant was arrested on a state rape charge on November 7, 2009 (see Case No. 334-2009, New York State Supreme Court, Richmond County, Criminal Term), released on bond, and subsequently fled to Canada (Letter from J. London to Hon. Sandra L. Townes, dated Apr. 18, 2016). Defendant spent the next six years fighting extradition to the United States, but was returned on April 15, 2016. (Id. )

C. The Indictment

On December 10, 2009, just over a month after Defendant's state arrest, a federal grand jury returned the indictment in this case (the "Indictment," Dkt. Entry No. 1), which charges, for each of the incidents described above, conspiracy to commit robbery (Counts One and Four), attempted robbery (Counts Two and Five), and use of a firearm during crimes of violence (Counts Three and Six). The only counts at issue for purposes of the present motion are Counts Three and Six. Count Three, the count related to the Staten Island attempt, states:

On or about August 17, 2006, within the Eastern District of New York and elsewhere, the defendant LLESH BIBA, together with others, did knowingly and intentionally use and carry a firearm during and in relation to one or more crimes of violence, to wit: the crimes charged in Counts One and Two, and did knowingly and intentionally possess such firearm in furtherance of said crimes of violence.

( Title 18, United States Code, Sections 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 2 and 3551 etseq.)

(Indictment at 2.) Count Six, the count regarding the Ansonia attempt, is the same in all respects except for the date ("August 29" instead of "August 17") and the related counts ("Counts Four and Five" instead of "Counts One and Two"). (Id. at 3-4.)

D. Defendant's Motion to Dismiss

On August 25, 2016, Defendant moved to dismiss Counts Three and Six of the Indictment. (Mot. to Dismiss.) Defendant's principal argument is that (i) a conspiracy or attempt to commit Hobbs Act robbery is not a "crime of violence" as defined in 18 U.S.C. § 924(c)(3) and (ii) the "risk-of-force clause," 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. Defendant acknowledges that Second Circuit recently has rejected these arguments in the context of a completed Hobbs Act robbery, see United States v. Hill , 832 F.3d 135 (2d Cir. 2016), but argues that Hill can be distinguished from the conspiracy and attempt counts set forth in the Indictment here. (Mot. to Dismiss at 7.) Defendant also notes that because the Hill decision on vagueness is at odds with decisions in other circuits, he seeks to preserve the argument in the event it is addressed by the Supreme Court. (Id. at 1, 5 n.2.)

Defendant's alternative argument takes issue with only a portion of Counts Three and Six, arguing that the government was required to allege expressly that he "brandished" a firearm in order for the government's charge under 18 U.S.C. § 924(c)(1)(A)(ii) to stand. Defendant asserts that because "brandishing" has been recognized as element of the offense, see Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), the failure to include this charge expressly in the Indictment constitutes a violation of his Fifth and Sixth Amendment rights. (Id. at 8-9.) Although Defendant acknowledges that the Indictment cites to the statute for "brandishing" a firearm, he argues that the citation alone does not provide "adequate notice of what is the core of criminal behavior that the government will seek to prove at trial." (Id. at 8.)

For the reasons explained below, the Court dismisses, without prejudice, the charges of Counts Three and Six for "brandishing" a firearm pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), but otherwise denies Defendant's Motion to Dismiss.

DISCUSSION

I. Motion to Dismiss Counts Three and Six

A. Statutory Framework

Counts Three and Six charge Defendant with violating 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(ii), which provides, in pertinent part:

[A]ny 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 any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.

18 U.S.C. §§ 924(c)(1)(A)(i)-(ii). The statute, in turn, defines "crime of violence" as an offense that is a felony and either:

(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 a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). § 924(c)(3)(A) is commonly referred to as the "force clause" and § 924(c)(3)(B) as the "risk-of force clause." See Hill , 832 F.3d at 138.

The crimes of violence alleged in the Indictment were the Hobbs Act robbery counts charged as Counts One and Two for the Staten Island robbery attempt, and Counts Three and Four for the Ansonia robbery attempt, respectfully. (See Indictment; see also 18 U.S.C. § 1951.) The Hobbs Act robbery statute punishes a person who "in any way or degree obstructs, delays, or affects commerce ... by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section." 18 U.S.C. § 1951(a). The statute defines "robbery" as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1).

B. Legal Standard

Courts are required to employ the "categorical approach" when evaluating whether an offense constitutes a crime of violence. Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Second Circuit Court of Appeals has advised that this approach "is not only consistent with both precedent and sound policy but also necessary in view of the language of the applicable statutes." Hill 832 F.3d at 139 (citations, internal quotation marks and alterations omitted). Pursuant to the categorical approach "a court assesses whether...