United States v. Conyers

• Decision Date: 29 December 2016
• Docket Number: S13 15–CR–537 (VEC)
• Citation: 227 F.Supp.3d 280
• Parties: UNITED STATES of America, v. Rashaad CONYERS et al., Defendants.
• Court: U.S. District Court — Southern District of New York

227 F.Supp.3d 280

UNITED STATES of America,

v.Rashaad CONYERS et al., Defendants.

S13 15–CR–537 (VEC)

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

Signed December 29, 2016

Dina McLeod, Samson Aaron Enzer, Andrew Caldwell Adams, United States Attorney's Office, James M. McDonald, US DOJ, New York, NY, for United States of America.

Bradley Lamar Henry, The Henry Law Firm PLLC, Allan Paul Haber, Law Office of Allan P. Haber, Bobbi C. Sternheim, Law Offices of Bobbi C. Sternheim, Russell Todd Neufeld, Russell T. Neufeld Law Office, Jennifer L. Brown, Federal Defenders of New York Inc., Anthony Cecutti, Law Office of Anthony Cecutti, Glenn Andrew Garber, Glenn A. Garber, P.C., Michael Tremonte, Noam Korati Biale, Sher Tremonte LLP, Bryan Matthew Konoski, Treyvus & Konoski, PC, Christopher Lloyd Lavigne, Shearman & Sterling LLP, Lisa Scolari, Law Office of Lisa Scolari, Neil Bruce Checkman, Law Offices of Neil B. Checkman, Lorraine Gauli–Rufo, LGR Law, LLC, Edward Vincent Sapone, Edward V. Sapone LLC, Sean Michael Maher, The Law Offices of Sean M. Maher, PPLC, Kenneth Alan Paul, Law Office of Kenneth A. Paul, Dawn Maria Florio, Dawn M. Florio Law Firm PLLC, Irving Cohen, Irving Cohen, Attorney–at–Law, Thomas Hamilton Nooter, Freeman Nooter & Ginsberg, Richard Harris Rosenberg, Richard H. Rosenberg, Attorney at Law, Robert L. Peabody, Jackson Lewis P.C., Donald Joseph Yannella, III, Donald Yannella P.C., Karloff Cylton Commissiong, Adams & Commissiong LLP, Renato Christian Stabile, Gerald B. Lefcourt, P.C, Michael Keith Bachrach, Clara Sophia Kalhous, Richard Palma, Steven R. Kartagener, George Robert Goltzer, Donald D. Duboulay, Mitchell Joel Dinnerstein, New York, NY, Grainne O'Neill, Deveraux L. Cannick, Aiello & Cannick, Maspeth, NY, Anthony Strazza, Law Office of Anthony Strazza, Andrew Alan Rubin, Mancuso Rubin & Fufidio, White Plains, NY, Susan Gail Kellman, Law Offices of Susan G. Kellman, Kelley J. Sharkey, Brooklyn, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Defendant William Bracy is alleged to have been a member of a violent gang known as the "Young Gunnaz" or "YGz." S13 15–CR–537 (the "S13 Indictment") (Dkt. 590) ¶¶ 1–2. Count Five charges that, in connection with Bracy's participation in the YGz, he and two other members of the YGz beat to death Moises Lora, a member of a rival street gang, in violation of 18 U.S.C. §§ 1959(a)(1), (2). S13 Indictment ¶¶ 7.l, 19–20. Section 1959 provides that a defendant convicted of murder in aid of racketeering must be sentenced to life imprisonment or death. Bracy moved to dismiss Count Five of the indictment as unconstitutional as applied to him.¹ Because he was a juvenile at the time of Lora's murder, he contends that the penalty provisions of Section 1959 violate the Eighth Amendment as applied to him and therefore Count Five must be dismissed as against him. See Miller v. Alabama , ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). For the reasons that follow, Bracy's motion to dismiss Count Five is DENIED.

DISCUSSION

1. Background

The background of the Government's case is discussed in the Court's opinion resolving other pre-trial motions filed by Bracy and his co-defendants. Dkt. 597. As is relevant to this issue, Bracy is charged with being a member of the YGz, a racketeering enterprise that began operating in approximately 2005. S13 Indictment ¶ 5. The YGz are alleged to have been involved in multiple murders; robbery and attempted robbery; and the distribution of controlled substances, including crack cocaine, heroin, and marijuana. Id. Bracy was seventeen at the time of Lora's murder on April 16, 2012. S13 Indictment ¶ 20; Dkt. 494 at 2. He and two of his charged co-conspirators are alleged to have attacked Lora at 700 Morris Avenue, Bronx, New York, and beat him to death. S13 Indictment ¶ 20.

The Government and defense counsel agree that the Eighth Amendment precludes imposition of a mandatory life sentence on Bracy for crimes committed prior to his eighteenth birthday. In Miller , the Supreme Court held that juvenile offenders may not be sentenced to mandatory life-without-parole sentences. 132 S.Ct. at 2464. After Miller , it remains permissible to sentence a juvenile to life in prison, but a sentencing judge may do so only after considering the "mitigating qualities of youth," id. at 2467 (quoting Johnson v. Texas , 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) ), and its "hallmark features" of "immaturity, impetuosity, and failure to appreciate risks and consequences," id. at 2468.

The Federal murder in aid of racketeering statute under which Bracy is charged does not provide discretion to the sentencing judge. It provides, in relevant part:

(a) Whoever, ... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders ..., or attempts or conspires so to do, shall be punished—

(1) for murder, by death or life imprisonment, or a fine under this title, or both; ....

18 U.S.C. § 1959(a). Because the penalty provision plainly contravenes Miller , Bracy argues that the statute is unconstitutional as applied to him. Def. Mem. (Dkt. 204) at 2–3. His motion contends that no saving construction of Section 1959 is viable and, for support, he relies on United States v. Under Seal , 819 F.3d 715 (4th Cir. 2016), a Fourth Circuit decision that held Section 1959 to be unconstitutional as applied to juvenile offenders charged with murder. Def. Mem. at 2–3.

According to the Government, the Court can remedy the constitutional problem in Section 1959 by, first, striking the penalty provision in subsection 1959(a)(1) as applied to juveniles and then, second, by reading two other provisions of Title 18—Section 3559(a) and Section 3581—to fill the resulting gap in the statute with an alternative penalty of up to life in prison. Section 3581 provides, in relevant part, that a defendant who has been found guilty of a Class A felony may be sentenced to a term of imprisonment equal to the "duration of the defendant's life or any period of time." 18 U.S.C. § 3581(b)(1).²

Because Congress has not included a letter classification in Section 1959, Section 3581 can only apply by reference to Section 3559(a)(1), which provides, in relevant part, that:

(a) An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—

(1) life imprisonment, or if the maximum penalty is death, as a Class A felony; ....

18 U.S.C. § 3559(a)(1). Assuming that Section 1959 is a statute for which the "maximum term of imprisonment authorized" is either life imprisonment or death, despite the fact that both of those penalties are invalid as applied to Bracy, the Government argues that Section 3581 operates as a background penalty provision that fills the gap in Section 1959 caused by Miller . Gov't Opp. (Dkt. 216) at 5–6. The Government is forthright in conceding that no Court has previously invalidated a penalty provision and used Section 3581 as a default provision to fill the resulting statutory gap. Id. at 11. But it draws support from another provision, Section 3551, which provides that the penalty provisions of Chapter 227, including Section 3581, apply unless otherwise provided by statute. See 18 U.S.C. §§ 3551(a), (b)(3) ; Gov't Opp. at 5.

2. Partial Invalidation of Unconstitutional Statutes

In United States v. Booker, the Supreme Court articulated a three part standard to be used to determine whether unconstitutional provisions may be severed from a statute without invalidating the statute as a whole. 543 U.S. 220, 258–59, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court began with "a presumption that the enactment is severable from the remainder of the section or act." Hamad v. Gates , 732 F.3d 990, 1001 (9th Cir. 2013) (citing Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685–86, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) ). The touchstone under Booker is legislative intent. Ayotte v. Planned Parenthood of N. New England , 546 U.S. 320, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). To determine what parts of a statute can be retained, the Court must consider what portions of the statute are "(1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress'[s] basic objectives in enacting the statute."³ Booker, 543 U.S. at 258–59, 125 S.Ct. 738 (internal citations and quotation marks omitted). Most often, that requires the Court to consider whether the "legislature [would] have preferred what is left of its statute to no statute at all[.]" Ayotte , 546 U.S. at 330, 126 S.Ct. 961. The presumption of severability and the Booker standard reflect the principle that Courts should be careful not to invalidate more of a statute than necessary because holding legislation unconstitutional "frustrates the intent of the elected representatives of the people." Ayotte , 546 U.S. at 329, 126 S.Ct. 961 (quoting Regan v. Time, Inc. , 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) ).

The question presented in this case is whether, in light of Miller , there is any constitutionally valid portion of Section 1959(a) as applied to juveniles that will function independently and "in a manner consistent with the intent of Congress." Nat'l Fed'n of Indep. Bus. v. Sebelius , 567 U.S. 519, 132 S.Ct. 2566, 2668, 183 L.Ed.2d 450 (2012) (joint dissent) (quoting Alaska Airlines , 480 U.S. at 685, 107 S.Ct. 1476 ). The first step in the analysis is to consider what portions or applications of Section 1959(a) are constitutional, mindful of the Supreme Court's directive that the Court should invalidate as little of a statute as constitutionally necessary. See Ayotte , 546 U.S. at 329, 126 S.Ct. 961.

The Court's leeway to shape a remedy that is faithful to legislative intent is limited. "[E]ditorial freedom ... belongs to the Legislature, not the Judiciary." Free Enter. Fund ...