United States v. Checora

• Decision Date: 21 December 2015
• Docket Number: Case No. 2:14cr457DAK
• Citation: 155 F.Supp.3d 1192
• Parties: United States of America, Plaintiff, v. Grant Hubert Checora, Defendant.
• Court: U.S. District Court — District of Utah

155 F.Supp.3d 1192

United States of America, Plaintiff,

v.Grant Hubert Checora, Defendant.

Case No. 2:14cr457DAK

United States District Court, D. Utah, Central Division.

Signed December 21, 2015

Andrea T. Martinez, U.S. Attorney's Office, Salt Lake City, UT, for Plaintiff.

MEMORANDUM DECISION AND ORDER

DALE A. KIMBALL, United States District Judge

This matter is before the court on Defendant Grant Hubert Checora's Motion to Dismiss Counts II and IV of the Indictment. On December 2, 2015, the court held a hearing on the motion. At the hearing, the United States was represented by Andrea T. Martinez, and Defendant was present and represented by Adam Bridge and Lynn Clark Donaldson. The court took the motion under advisement. Having carefully considered the memoranda submitted by the parties and the law and facts relating to the motion, the court issues the following Memorandum Decision and Order.

BACKGROUND

At 2:04 a.m. on June 11, 2014, Bureau of Indian Affairs (“BIA”) officers responded to a shooting in Fort Duchesne, Utah. BIA and FBI agents learned that a confrontation between two groups preceded the shooting. A juvenile male was shot in the chest and leg and an adult male was shot multiple times. The adult male was pronounced dead at the Uintah Basin Medical Center in Roosevelt, Utah. The shooter, later identified as Defendant Grant Hubert Checora, admits to firing the .22 caliber pistol while chasing the other group in the street.

On September 3, 2014, a grand jury returned a four-count Indictment charging Defendant with violations of 18 U.S.C. §§ 1111(a) and 1153(a), Murder in the Second Degree While Within Indian Country (Count I); 18 U.S.C. § 924(c), Use and Discharge of a Firearm During and in Relation to a Crime of Violence (Count II); 18 U.S.C. §§ 1113 and 1153(a), Attempt to Commit Murder While Within Indian Country (Count III); and 18 U.S.C. § 924(c), Use and Discharge of a Firearm During and in Relation to a Crime of Violence (Count IV).

DISCUSSION

Defendant's Motion to Dismiss

Defendant moves to dismiss the 18 U.S.C. § 924(c) firearm enhancement charges brought in Counts II and IV of the Indictment, arguing that the second degree murder and attempted murder charges in this case cannot be predicate crimes of violence under 18 U.S.C. § 924(c)(3).

To sustain a conviction under 18 U.S.C. § 924(c), the government must prove that Defendant (1) discharged or brandished a firearm and (2) did so during and in furtherance of a crime of violence. Section 924(c)(3) 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 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). Subsection (A) is referred to as the force clause while subsection (B) is referred to as the residual clause. See United States v. McDaniels , 2015 WL 7455539, *2 (E.D.Va. Nov. 23, 2015).

Defendant contends that second degree murder and attempted murder do not meet the requirements under § 924(c)(3)'s force clause and the residual clause is void for vagueness after the United States Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Under Tenth Circuit law, whether a crime is a “crime of violence” is a question of law. United States v. Morgan , 748 F.3d 1024, 1034 (10th Cir.2014).

Under 18 U.S.C. § 1111(a), second degree murder is “the unlawful killing of a human being with malice aforethought.” 18 U.S.C. § 1111(a). In the Tenth Circuit, malice aforethought for second-degree murder can be manifested by (1) a general intent to kill, (2) intent to do serious bodily injury, (3) depraved heart recklessness, or (4) killing in the commission of a felony that is not among those specifically listed in the first degree murder statute. United States v. Pearson , 203 F.3d 1243, 1270 (10th Cir.2000).

Attempted murder requires the government to prove that Defendant took a substantial step toward killing another person and that Defendant had a specific intent to kill. See 18 U.S.C. § 1113 ; Brax ton v. United States , 500 U.S. 344, 350 n. 5, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991). Because Section 1113 does not specify the elements of “attempt to kill,” “they are those required for an ‘attempt’ at common law,” including a specific intent to kill. Braxton v. United States , 500 U.S. 344, 350 n. 5, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991).

1. § 924(c)(3)(A) Force Clause

Defendant argues that, under the force clause, second-degree murder and attempted murder cannot be predicate crimes of violence because they can be committed without the use, attempted use, or threatened use of physical force against the person or property of another. “Physical force” means “ ‘violent force—that is, ‘physical force capable of causing physical pain or injury to another person.’' United States v. Hood , 774 F.3d 638, 645 (10th Cir.2014). Each charge is addressed separately below.

A. Second-Degree Murder

Pointing to the many different means of demonstrating “malice aforethought,” Defendant argues that the full range of conduct covered by the second degree murder statute does not require the use of violent physical force. Defendant contends that the court must look to the most innocent conduct criminalized by § 1111(a) and, if such conduct does not require the intentional use of violent physical force, then second-degree murder is not a crime of violence.

Defendant's basis for making such an argument is based on the assumption that the court must employ a “categorical approach” in determining whether second-degree murder and attempted murder are predicate crimes of violence for purposes of § 924(c). Morgan , 748 F.3d at 1034. Under the categorical approach, the court looks only to the elements of the crime, not the particular facts of the case. Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ; Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach appears to be supported by the language of § 924(c)(3)(A), which defines a crime of violence as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis added).

The court notes, however, that several district courts around the country have recently questioned the use of the categorical approach in Section 924(c)(3) cases, especially in the context of a pretrial motion to dismiss. See, e.g., United States v. Standberry , 2015 WL 5920008, *2 (E.D.Va.2015) (questioning use of categorical approach outside of sentencing context in which cold record review is required); United States v. Brownlow , 2015 WL 6452620 n. 3 (N.D.Ala. Oct. 26, 2015) (noting “the future of a ‘categorical approach’ to defining a crime of violence under § 924(c) may be short lived.”); United States v. McDaniels , 2015 WL 7455539, *2–3 (E.D.Va. Nov. 23, 2015) (refusing to apply categorical approach for pre-trial motion to dismiss and sending determination of crime of violence to the jury as a question of fact); United States v. Church , 2015 WL 7738032, *3–4 (N.D.Ind. Dec. 1, 2015) (“this Court, likewise, looks to the purpose of the categorical approach and questions whether the assumption that it applies to a § 924(c) offense is not misguided.”); United States v. Woodley , 2015 WL 7770859, * 4 (E.D.Mich. Dec. 3, 2015) (stating that none of the reasons for using the categorical approach apply with much force in a § 924(c) pretrial case).

These district courts all recognize that while the statutory language between the Armed Career Criminal Act (“ACCA”), which was the genesis of the categorical approach, and 18 U.S.C. § 924(c)(3) may be similar, the question of whether a crime is a crime of violence arises in significantly different contexts under the two statutes. The ACCA provides enhanced punishment for persons with three previous convictions for a “violent felony.” 18 U.S.C. § 924(e). A “violent felony” under the ACCA is any crime punishable by imprisonment for more than one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B). While the language of the ACCA's force clause is nearly identical to § 924(c)(3)(A), a court determining whether a prior offense under the ACCA is a violent felony is conducting a cold record review of a prior conviction whereas a court determining a crime of violence under § 924(c)(3) is looking at a predicate crime that is charged in the same case. Because the court in a § 924(c)(3) case is not looking at a prior conviction where facts may be lost or unclear, there is no danger of a collateral trial or judge found facts. “The Court is instead dealing with a live case where fresh evidence will be presented to a jury.” Woodley , 2015 WL 7770859, at *4. A jury can and will determine whether the government has proven the elements of the alleged predicate crimes beyond a reasonable doubt. “Sixth Amendment concerns could be quelled by putting the factual questions about the violent nature of the crime to the jury and, if necessary, obtaining the answers by special verdict.” Id. This court agrees with the reasoning of the courts questioning whether the categorical approach is appropriate in the context of a § 924(c)(3) case, especially in the context of deciding a pretrial motion to dismiss.

The Tenth Circuit has previously recognized differences between the statutes: “[w]hile § 924(c)(1) addresses the use of firearms in furtherance of a crime of violence or drug trafficking, the ACCA and [USSG] § 4B1.2 enhance the punishment imposed for repeat offenders. These differences help explain why courts have reached seemingly different conclusions about what...