United States v. Elmore, 3:13-cr-00764-WHO-6

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtWilliam H. Orrick United States District Judge
Docket Number3:13-cr-00764-WHO-6
Decision Date27 August 2022



No. 3:13-cr-00764-WHO-6

United States District Court, N.D. California

August 27, 2022


RE: DKT. NOS. 2399, 2427, 2446

William H. Orrick United States District Judge


Reginald Elmore pleaded guilty to Racketeer Influenced and Corrupt Organizations (“RICO”) Act conspiracy and use or possession of a firearm in the course of a crime of violence that caused the death of another under 18 U.S.C. § 924(j). He moves to vacate his Section 924(j) conviction under 28 U.S.C. § 2255 in light of the Supreme Court's decisions in United States v. Davis, 139 S.Ct. 2319 (2019) (which issued after his guilty plea but before sentencing), and Borden v. United States, 141 S.Ct. 1817 (2021) (which issued after he began serving his sentence). Since the parties filed their initial briefs, the Ninth Circuit also issued its en banc decision in United States v. Begay, 33 F.4th 1081 (9th Cir. 2022). Now that Begay is resolved, this matter is ripe for decision.

Section 924(j) authorizes heightened penalties for those who “cause[] the death of a person through use of a firearm” in the course of violating 28 U.S.C. § 924(c). Section 924(c), in turn, prohibits (among other things) using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a “crime of violence.” As Congress wrote the statute, an offense could qualify as a crime of violence under either the “elements clause” or the “residual clause.” In Davis, the Supreme Court struck down the residual clause as unconstitutionally vague.


Consequently, to be a crime of violence, an offense must qualify under the elements clause-that is, it must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 28 U.S.C. § 924(c)(3)(A). According to Elmore, his offense qualified as a crime of violence under the now-void residual clause but not under the still-valid elements clause.

The motion to vacate Elmore's conviction is denied. Elmore first argues that, because he pleaded guilty on the basis of Pinkerton liability, the predicate offense is conspiracy; after Davis, he argues, a conspiracy conviction cannot qualify as a crime of violence. But because he admitted liability under Pinkerton, he pleaded guilty to the substantive predicate offense of murder in aid of racketeering activity (or “VICAR murder”), not the separate offense of conspiracy-something that is both legally true and plain from the plea colloquy. As a fallback, Elmore argues that, even if the predicate offense is VICAR murder, his conviction is unlawful because VICAR murder cannot qualify as a crime of violence when based on California law after Borden, which held that offenses with a mens rea of ordinary recklessness are not crimes of violence. That argument also fails: the VICAR murders here that form the predicate for the Section 924(j) conviction are, in light of Begay, crimes of violence even after Davis and Borden.


The government filed a superseding indictment against Elmore and others on January 9, 2014, see Dkt. No. 1, and a second superseding indictment on August 14, 2014, see Second Superseding Indictment (“Indict.”) [Dkt. No. 139]. The operative indictment charged Elmore with four offenses: violation of the RICO conspiracy, two counts of murder in aid of racketeering (sometimes called VICAR murder), and use or possession of a firearm in the course of the VICAR murders. Id. at 6-9, 17-18.[1] The last count-Count 8 of the Indictment-was brought under 18 U.S.C. § 924(j), for use or possession of a firearm during the course of a crime of violence that resulted in killing. Id. Count 8 was predicated on Counts 6 and 7 of the Indictment. Id. ¶ 33.


Count 6 charged Elmore with the VICAR murder of Andre Helton; Count 7 charged Elmore with the VICAR murder of Isaiah Turner. See id. ¶¶ 28-31. Both counts alleged that the murders occurred on or about August 14, 2008. Id. ¶¶ 29, 31. Both counts alleged that Elmore murdered Helton and Turner “in violation of California Penal Code Sections 187, 188, 198, and 31-33.” Id. And both counts alleged that these murders, in violation of California law, occurred “[a]ll in violation of Title 18, United States Code, Sections 1959(a)(1) and 2.” Id.

On May 3, 2019, Elmore pleaded guilty to RICO conspiracy and the Section 924(j) offense. See May 3, 2019 Transcript (“Plea Trans.”) [Dkt. No. 2379] at 5:23-19:23. In exchange for his agreement to seek a sentence of no fewer than 20 years, the government dismissed the VICAR murder counts. Id. at 3:6-23, 11:2-6.

Several sections of the plea colloquy are relevant here. First, before Elmore was present, Elmore's counsel began the proceeding by laying out the terms of the plea bargain. The agreement was “in rough terms” that Elmore would plead guilty to the RICO conspiracy charge and “he would also plead to Count 8, which is a 924(j) count on a Pinkerton theory.” Id. at 3:1113. Later, the prosecutor stated,

We do not require that Mr. Elmore admit to Pinkerton liability for the VICAR murder; but in order for the 924(j) charge to have a sufficient factual basis, Mr. Elmore does have to admit that that happened. You know, so someone committed a VICAR murder of Mr. Turner and Mr. Helton. He doesn't have to say “It was me.” He doesn't have to say “I'm liable for it,” but he has to admit that that happened

Id. at 4:12-18. After a pause in proceedings, the prosecutor said, “I'm sorry. That's right, Your Honor. I misspoke. Yeah, he does not have to be convicted of that charge but he has to say ‘I'm liable for it . . . because it happened under Pinkerton, and I'm liable under Pinkerton even though I'm not pleading guilty to that charge.'” Id. at 5:1-7. Elmore's counsel interjected partway through this statement to say, “[r]ight.” Id. at 5:4.

Then, with Elmore present, the parties and I went through the colloquy. After ensuring that the plea was knowing, intelligent, and voluntary, I said, “[i]t's my understanding that you'd be pleading open to Count 1 of the Indictment, which is the RICO enterprise charge; and then Count 8, which is the 924(j) charge, and that that carries with it-may carry with it the Pinkerton


liability. So did you discuss all of that with your counsel?” Id. at 7:8-13. Elmore responded, “[y]eah, I discussed that.” Id. at 7:14. I said, “[a]nd you would not be pleading to the VICAR murder; correct?” Id. at 7:15-16. Elmore replied, “[t]hat's correct.” Id. at 7:17. I continued with the required inquiries of and cautions to Elmore.

Later, after going through the elements of the first charge that Elmore was pleading to, the prosecutor stated that the elements for the Section 924(j) charge were:

First, [Central Divisadero Playas (“CDP”)] was a criminal enterprise that existed from at least April 2007 through at least 2014; CDP engaged in racketeering activity and affected interstate commerce; third, a person committed the murders of Isaiah Turner and Andre Helton on August 14th, 2008; fourth, the person knowingly used a firearm to cause the murders of Isaiah Turner and Andre Helton, that is, the unlawful killing with malice aforethought of a person; fifth, the murders were committed as consideration for a promise or agreement to pay anything of pecuniary value from CDP, for the purpose of gaining entrance to CDP, or to maintain and increase position in CDP; sixth, the person who committed the murders was a member of the conspiracy charged in Count 1, that is CDP; seventh, Mr. Elmore was a member of the same conspiracy at the time the murders were committed; and, finally, the murders of Isaiah Turner and Andre Helton with a firearm fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement.

Id. at 13:1-20. I asked Elmore's counsel if he agreed that “those are the elements of that charge” and he said that he did. Id. at 13:21-23. I asked Elmore if he “underst[ood] the elements of the offenses that the Government would have to prove in order to convict you?” Id. at 13:24-14:1. He replied that he did. Id. at 14:2.

Each party then went through the factual basis underpinning the plea. The government's representation about the Section 924(j) offense was as follows:

So with respect to Count 8, the Government does not expect and does not anticipate that Mr. Elmore would admit this, but the Government would be prepared to prove beyond a reasonable doubt that Mr. Elmore actually committed the murders of Isaiah Turner and Andre Helton in a car outside the University of San Francisco on October - on August 14th, 2014 - I'm sorry - 2012.

Id. at 17:3-9. Elmore's counsel interjected to say “2008” and the government resumed:

Yes. August 14th, 2008.
But for the purpose of this plea, the Government would definitely establish that some person associated with CDP killed Isaiah Turner and Andre Helton on August 14th, 2008; that the person did so with a firearm by shooting them both in the head; that the person caused the murder through the use of a firearm; that the person was affiliated with CDP;
that these murders were in furtherance of CDP activity, either through obtaining a bounty on Isaiah Turner's head or sort of avenging disrespect that Andre Helton was exercising toward members of CDP because as a member of the Uptown Alliance, he was doing work on behalf of the 6th Street Hustle Boys, a rival gang, and that disrespect had to be avenged.
We would establish that Charles Heard set up the murder by indicating that Mr. Turner would be participating in a house robbery; that the victims were found sitting in a car with gloves on their hands or were in the process of putting on gloves; that Mr.

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