United States v. Conyers, S13 15-CR-537 (VEC)
| Decision Date | 09 December 2016 |
| Docket Number | S13 15-CR-537 (VEC) |
| Parties | UNITED STATES OF AMERICA, v. RASHAAD CONYERS et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Defendants, alleged members and associates of the "Young Gunnaz," also known as the "YGz," a street gang operating primarily in the Bronx, New York, have been charged principally with racketeering conspiracy in violation of 18 U.S.C. § 1962(c).1 Various Defendants have moved to dismiss the Indictment, in whole or in part, to suppress evidence, and for a severance.2Some Defendants have also made discovery motions. For the following reasons, each of the Defendants' motions is denied.3
A group of approximately thirty YGz members and associates were charged with racketeering conspiracy based on their alleged racketeering activity, including drug trafficking, bank robberies, and various violent crimes, including murder. Four murders in aid of racketeering are charged, and five of the Defendants charged with those murders are capital-eligible;4 the remaining Defendants charged with those murders were juveniles at the time of the murder and therefore are not capital-eligible.
In September 2016, the Court divided the Defendants into two groups for trial, the first of which is slated to begin in January 2017 and the second in May 2017. Dkt. 495. Defendants' pretrial motions to dismiss, to suppress evidence, to sever, and for early or additional discovery are now pending before the Court.
A defendant seeking to challenge the sufficiency of an indictment on a motion to dismiss faces a high hurdle. United States v. Post, 950 F. Supp. 2d 519, 527 (S.D.N.Y. 2013). "Pursuant to Federal Rule of Criminal Procedure 7, 'the indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.'" United States v. Vilar, 729 F.3d 62, 80 (2d Cir. 2013) (quoting Fed. R. Crim. P. 7(c)(1) (alterationsomitted)). "An indictment is sufficient if it 'first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). The Second Circuit has "consistently upheld indictments that do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (quotation marks and citation omitted). "'Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial[,] the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.'" United States v. Perez, 575 F.3d 164, 166-67 (2d Cir. 2009) (quoting United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (alteration omitted)).
Jason Moye moves to dismiss Count One, which charges racketeering conspiracy, on the basis that it fails to allege adequately that the YGz enterprise affected interstate commerce. Moye Mem. 3 (Dkt. 385). Moye argues that the Indictment's "boiler-plate" reference to interstate commerce is inadequate because it does not provide any factual allegations to support the assertion that the YGz's activities affected interstate commerce.5 Id. at 3. In addition, Moye argues that the Indictment alleges conduct solely affecting local commerce because the Indictment states that the YGz operated in the Bronx and does not allege how specific acts ofviolence, gun possession, or drug dealing actually affected interstate or foreign commerce. Id. at 4-5.
Count One of the Indictment is sufficient. It tracks the language of the statute, including the provision setting forth the interstate commerce element of the offense.6 It also alleges the approximate time and place of the crime charged.7 The allegation in the Indictment that the YGz "operated principally in the Bronx," S8 Indictment ¶ 1, does not mean that the enterprise did not affect interstate commerce, but only that the enterprise was based in and the majority of its activities occurred in the Bronx.
In addition, Count One alleges that the YGz were engaged in drug trafficking, specifically the trafficking of crack cocaine, heroin, and marijuana. S8 Indictment ¶¶ 1, 3(a), 4(e), 5. It is well established that drug trafficking substantially affects interstate commerce. Taylor v. United States, 136 S. Ct. 2074, 2080 (2016) (); see also United States v. Guang Ju Lin, 707 F. Supp. 2d 443, 447 (S.D.N.Y. 2010) (). Accordingly, the allegation that the YGz were engaged indrug trafficking also adequately alleges the interstate commerce element of Count One. Moye's motion to dismiss Count One is denied.8
Conyers moves to dismiss Count Fourteen arguing that racketeering conspiracy does not qualify as a crime of violence as required by the statute. Conyers Mem. 13-14 (Dkt. 404). Count Fourteen of the S8 Indictment charges Conyers and others with possessing and discharging firearms in connection with a crime of violence, namely the racketeering conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A). That statute defines "crime of violence" as an offense that is a felony and:
18 U.S.C. § 924(c)(3). Section 924(c)(3)(A) is commonly referred to as the "force clause," while Section 924(c)(3)(B) is commonly referred to as the "residual clause" or as the "risk-of-force clause." United States v. Hill, 832 F.3d 135, 138 n.4 (2d Cir. 2016).
Conyers first argues that the residual clause of Section 924 is unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson struck down the residual clause in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). 135 S. Ct. at 2557. Conyers contends that the residual clause in Section 924 is similar, requiring the Court to invalidate Section 924(c)(3)(B). Conyers Mem. 17-19. The Second Circuit has squarely rejected Conyers's argument. In United States v. Hill, the Second Circuit held that the wording ofSection 924(c)(3)(B) differs materially from the residual clause of the ACCA and is therefore unaffected by Johnson. 832 F.3d at 145-50.9 Conyers does not dispute that a racketeering conspiracy, involving allegations of inter alia robbery, murder, and assault, is within the scope of the residual clause, assuming it is constitutional. Participating in the racketeering activities of a gang that commits murders and robberies as part of its modus operandi "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)(B).
Racketeering conspiracy is also a crime of violence under the force clause.10 According to Conyers, because use of physical force is not a required element of racketeering conspiracy, racketeering conspiracy is not a crime of violence under the force clause. Conyers Mem. 21. Similarly, Conyers argues that because racketeering conspiracy does not require the Government to prove an overt act, there is no requirement that the government prove a violent act. Id. at 22-23.
"Because racketeering offenses hinge on the predicate offenses comprising the pattern of racketeering activity, [courts] look to the predicate offenses to determine whether a crime of violence is charged." United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009). "[W]here the government proves (1) the commission of at least two acts of racketeering and (2) at least two of those acts qualify as 'crime[s] of violence' under § 924(c), a § 1962 conviction serves as a predicate for a conviction under § 924(c)." Id. Likewise, a conspiracy may be a crime of violence where the conspiracy involves an agreement to commit a predicate crime that woulditself be a crime of violence. See United States v. Desena, 287 F.3d 170, 181 (2d Cir. 2002); see also United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992) (). Thus, Conyers's argument would hold true only in the case of a racketeering conspiracy in which no violent acts are alleged, either as predicates or as the object of the conspiracy.
That is not this case. This racketeering conspiracy includes numerous violent predicate offenses, including, inter alia, murder, attempted murder, robbery, and attempted robbery. S8 Indictment ¶ 5. Murder is undoubtedly a crime of violence under Section 924(c), and the Second Circuit has held that Hobbs Act Robbery is a crime of violence under Section 924(c), Hill, 832 F.3d at 137.
In short, this racketeering conspiracy is a crime of violence under both the force and residual clauses, and Conyers's motion to dismiss Count Fourteen is denied.
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