United States v. Dervishaj

• Citation: 169 F.Supp.3d 339
• Decision Date: 14 March 2016
• Docket Number: 13–CR–0668 (ENV)
• Parties: United States of America, v. Redinel Dervishaj and Denis Nikolla, Defendants.
• Court: U.S. District Court — Eastern District of New York

169 F.Supp.3d 339

United States of America,

v.Redinel Dervishaj and Denis Nikolla, Defendants.

13–CR–0668 (ENV)

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

Signed March 14, 2016

M. Kristin Mace, Nadia Shihata, U.S. Attorney's Office, Eastern District of New York, Brooklyn, NY, for Plaintiff.

Michael P. Padden, Federal Defenders of New York, Inc., Brooklyn, NY, Kevin James Keating, Law Office of Kevin J. Keating, Garden City, NY, Michael Hurwitz, Hurwitz Stampur & Roth, New York, NY, for Defendants.

MEMORANDUM & OPINION

VITALIANO, DISTRICT JUDGE.

Defendants Redinel Dervishaj and Denis Nikolla stand charged in a superseding indictment with multiple counts of conspiring to and attempting to extort night clubs and other establishments, and with using, carrying, and possessing firearms in connection with those crimes. (Indictment, ECF No. 144).¹ After briefing and oral argument, on March 3, 2016, the Court denied defendants' motion to dismiss the three counts charging the firearms violations brought under 18 U.S.C. § 924(c). The defense challenge rested on the grounds that, in line with Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 2558, 192 L.Ed.2d 569 (2015), the statute underlying those counts is unconstitutionally vague. (Def. Mot., ECF No. 137; see Jan. 28, 2016 Minute Entry, ECF).² Now, supplementing those that accompanied issuance of the bench order, the reasons and analysis supporting denial of the motion follow.

Discussion

Under 18 U.S.C. § 924(c), it is a crime to use or carry a firearm in furtherance of, inter alia, a “crime of violence,” which is defined as a felony that

(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). The principal goal of § 924(c) is to “persuad [e] a criminal ‘to leave his gun at home.’ ” Muscarello v. United States, 524 U.S. 125, 132, 118 S.Ct. 1911, 1916, 141 L.Ed.2d 111 (1998) (“[T]he provision's chief legislative sponsor has said that the provision seeks ‘to persuade the man who is tempted to commit a Federal felony to leave his gun at home.’ ” (quoting 114 Cong.Rec. 22231 (1968) (Rep.Poff))).

To determine whether another criminal act qualifies as a predicate “crime of violence” under § 924(c), courts employ a “categorical approach” which considers “the intrinsic nature of the [charged predicate] offense rather than [ ] the circumstances of a particular crime.” United States v. Ivezaj, 568 F.3d 88, 95 (2d Cir.2009) (quoting United States v. Acosta, 470 F.3d 132, 135 (2d Cir.2006) ). In other contexts, the Second Circuit has explained that the categorical approach considers “the conduct encompassed by the elements of the offense, in the ordinary case,” and does not require that “every conceivable factual offense covered by a statute” present a substantial risk. United States v. Van Mead, 773 F.3d 429, 432 (2d Cir.2014) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007), overruled by Johnson, 135 S.Ct. 2551 ) (discussing the categorical approach in relation to a “crime of violence” under U.S.S.G. 4B1.2(a) ); seeJames, 550 U.S. at 208, 127 S.Ct. 1586 (“[O]ne could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments.... [T]he risk of physical injury to another approaches zero. But that does not mean that the offense[ ] of ... extortion [is] categorically nonviolent.).

In this case, the government does not contend that the predicate acts of conspiracy to and attempt to commit Hobbs Act extortion are, by their nature, crimes of violence within the meaning of subsection (A) of the firearms statute, which is commonly referred to as the force clause. The debate here is whether the alleged predicate crimes satisfy subsection (B), the statute's residual clause. (Gov't Mem. 2, ECF No. 141; Def. Reply Mem. 1, ECF No. 143).³ Indeed, at that, the debate is more refined. Defendants do not contest that, prior to Johnson, the predicate acts alleged in the superseding indictment would have unreservedly qualified as crimes of violence under the residual clause.⁴ For defendants, Johnson is the watershed moment. It is, principally, Johnson's reasoning as to 18 U.S.C. § 924(e)(2)(B) that spawns this motion and their request that the reasoning be extended to invalidate the residual clause of § 924(c)(3).

A. The Johnson Ruling

In Johnson, the Supreme Court considered a provision of the Armed Career Criminal Act (“ACCA”) that creates a sentencing enhancement for possessing a firearm in the commission of a federal felony when the defendant already has three prior convictions for violent felonies and/or serious drug offenses. 18 U.S.C. § 924(e)(1) ; see id. § 922(g). ACCA defines a “violent felony” as a crime punishable “by imprisonment for a term exceeding one year,” that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B).

The “residual clause” of ACCA, that is, the final phrase of subsection (ii), which criminalizes acts or omissions that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” had been considered by the Supreme Court in a series of decisions prior to Johnson : James, Begay, Chambers, and Sykes.⁵ The concurring and dissenting opinions these cases spawned laid bare serious concerns about the clarity and constitutionality of ACCA's residual clause.⁶ At the fore was the question of vagueness, which will invalidate a criminal statute where the degree of vagueness found compels the further finding that the statute “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008).

On the fifth Supreme Court go round over the constitutionality of ACCA's residual clause, the towel was finally tossed into the ring. Johnson found the provision void for vagueness, which it pegged to a combination of “[t]wo features” that “may be tolerable in isolation,” but were impermissible in tandem. Johnson, 135 S.Ct. at 2557, 2560. First, by relying on a categorical approach, rather than criminalizing certain acts or elements of conduct, “the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime.” Id. Second, “the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony,” because it applies “an imprecise ‘serious potential risk’ standard” to a “judge-imagined abstraction,” rather than to the facts of the presented case. Id. at 2558. Furthermore, courts were required to interpret this standard “in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives,” which compounded the imprecision by forcing a comparison to a list of crimes with varying and unclear degrees of risk of physical harm. Id. The Supreme Court concluded that, “[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

To underscore this finding of vagueness, Johnson acknowledged the “repeated failures [of the Supreme Court and the lower federal courts] to craft a principled and objective standard” for ACCA's residual clause. Id. at 2558–60. The Supreme Court specifically faulted James, Chambers, and Sykes for failing to ever “establish any generally applicable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition,” and also faulted Begay 's “entirely different approach” of requiring the predicate conviction to resemble the enumerated crimes “ ‘in kind as well as in degree of risk posed.’ ” Johnson, 135 S.Ct. at 2558–59 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581 ).

B. The Firearms Residual Clause of § 924(c)(3)(B)

Johnson was the spark plug for and, defendants contend, controls, their challenge to the similar, but far from identical, language of § 924(c)(3)(B). The crux of the dispute is whether Johnson is limited to ACCA's unique text, application, and case law, or should be read broadly to invalidate criminal catch-all residual clauses. The defense position has, no doubt, some facial appeal because there is some commonality of language between ACCA's residual clause and § 924(c)(3)(B), and because both provisions utilize a categorical approach when assessing risk.

These similarities, however, are not enough to foreclose further inquiry. It is an inquiry grounded in the institutional humility that the courts are but a branch of the federal government and, where possible, are required “to construe, not condemn, Congress' enactments.” Skilling v. United States, 561 U.S. 358, 403, 130 S.Ct. 2896, 2928, 177 L.Ed.2d 619 (2010). “The strong presumptive validity that attaches to an Act of Congress has led [the Supreme] Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” Arriaga v. Mukasey, 521 F.3d 219, 227 (2d Cir.2008) (quoting United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) ); see Johnson, 135 S.Ct. at 2576 (Alito, J., dissenting)....