United States v. Graham
| Decision Date | 15 August 2012 |
| Docket Number | No. 09–2819–cr.,09–2819–cr. |
| Citation | 691 F.3d 153 |
| Parties | UNITED STATES of America, Appellee, v. Larone GRAHAM, also known as Abgod Graham, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Donna R. Newman, Buttermore Newman Delanney & Foltz, LLP, New York, NY, for Defendant–Appellant.
Lara Treinis Gatz, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.
This case presents the question of whether the discharge of a cartridge from a 9–millimeter semiautomatic pistol constitutes the use of an “explosive” for purposes of 18 U.S.C. § 844(h)(1). For the reasons that follow, we conclude that it does not.
Defendant–Appellant Larone Graham, a/k/a Abgod Graham (“Graham”), appeals from a June 17, 2009, judgment of the United States District Court for the Eastern District of New York (Seybert, J.) sentencing him principally to a total of 50 years' imprisonment and five years' supervised release, following his conviction, upon a jury trial, of: conspiracy to affect commerce by robbery, in violation of 18 U.S.C. § 1951(a); affecting commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; conspiracy to affect commerce by extortion, in violation of 18 U.S.C. § 1951(a); affecting commerce by extortion, in violation of 18 U.S.C. § 1951(a) and 2; discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and using an explosive to commit a felony, in violation of 18 U.S.C. § 844(h)(1). Graham's 50–year sentence included two consecutive, mandatory 10–year terms of imprisonment for the violations of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 844(h)(1), both based on Graham's firing of a gun at the ground next to the victim of his extortion.
On appeal, Graham argues principally that his conviction on Count Eleven of the Superseding Indictment for use of an explosive to commit a felony, in violation of 18 U.S.C. § 844(h)(1), should be reversed because the cartridge in the 9–millimeter semiautomatic pistol he discharged during the course of his extortion does not constitute an “explosive” for purposes of the statute. 1 In the alternative, Graham argues that convicting him for one act of discharging a gun in furtherance of extortion under both 18 U.S.C. § 844(h)(1), the explosives statute, and 18 U.S.C. § 924(c)(1)(A)(iii), the statute punishing the discharge of a firearm used or carried during and in relation to a crime of violence, constitutes multiple punishments for the same offense and therefore violates the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V.2
For the reasons stated below, we conclude that the term “explosive” in 18 U.S.C. § 844(h)(1) does not include within its ambit the cartridge in the 9–millimeter semiautomatic pistol used by Graham. Accordingly, we reverse the judgment of the district court on Count Eleven of the Superseding Indictment.3 In an accompanying summary order filed today, we reject Graham's remaining challenges to his conviction. Accordingly, we reverse his conviction on Count Eleven, affirm his conviction on Counts One, Two, Three, Five, Six, Seven, and Ten, and remand for de novo resentencing on these affirmed counts, see United States v. Rigas, 583 F.3d 108, 115–119 (2d Cir.2009) (citing United States v. Quintieri, 306 F.3d 1217 (2d Cir.2002)).
The following background relates to the conduct charged in Count Eleven of the Superseding Indictment and is taken from the testimony at trial.
Graham was the leader of a group of violent robbers associated with the Louis H. Pink Houses (the “Pink Houses”), a public housing project in Brooklyn, New York. The group, which was sometimes known as the “Pink Houses Group,” carried out robberies of jewelry and specialty stores, collecting, among other things, jewelry, cash, and fur coats. After Graham's henchmen completed the robberies, they would often gather in the parking lot of the Pink Houses and distribute the loot amongst themselves and to Graham, their leader.
On December 3, 2003, members of the Pink Houses Group robbed the Diamond Oro jewelry store at Broadway and 144th Street in Manhattan. The group was led by Graham's lieutenant, Kareem Davis, (“Davis”) and included Pink Houses Group member Tyrone Redrick (“Redrick”) and Jamel Thompson (“Thompson”), a member of another gang known as NFL. Following this successful armed robbery, the robbers drove back to Brooklyn, stopping briefly to drop Thompson off at his girlfriend's home. There, Thompson examined the jewelry he had taken, electing to keep a few items for himself. These items included a gold, diamond-encrusted ornament depicting the head of Jesus Christ and referred to at trial as the “Jesus head.” Thompson put the remaining jewelry into a bag.
Later that same day, Thompson called NFL's leader, Michael Harriston (“Harriston”), and explained that he had just executed a robbery with members of the Pink Houses Group and would give Harriston some of the jewelry he had stolen. The two men drove to Thompson's house, where Thompson retrieved the Jesus head and gave it to Harriston in exchange for a diamond ring.
That night, a group that included Graham, Davis, and other Pink Houses Group members met in the Pink Houses parking lot with Thompson. Thompson handed the bag of jewelry (less the items he had removed) over to the group. After reviewing the contents of the bag, Graham indicated that he was disappointed in the loot and that Thompson had “botched up the job.” After this meeting, Graham and Davis became suspicious that Thompson had taken jewelry for himself without the group's knowledge when Thompson stopped at his house on the way back from the robbery. Davis called Thompson, who admitted that he had taken jewelry from the robbery, pawned it, and purchased a white Acura with the proceeds.
Graham discussed Thompson's theft from the group with Davis and indicated that he wanted to go find Thompson and make him give back the jewelry he had taken for himself. Graham (accompanied by other members of the group) located Thompson at a barber shop. After doing so, Graham forced Thompson to get into Graham's vehicle by, inter alia, firing a single shot into the ground with a 9–millimeter pistol when Thompson appeared ready to flee the scene.
The group drove to a pier in Far Rockaway, Queens; during the drive, Thompson told Graham and the others that he had given the Jesus head to Harriston in exchange for a ring. At the pier, Graham and his lieutenants threatened Thompson, who promised (at gunpoint) that he would pay back his debt to the Pink Houses Group if he was allowed to live. The group then drove back to the Pink Houses and, later that night, released Thompson on the condition that he commit more robberies to “make it up” to them.
The group convened at a gas station on Atlantic Avenue in Brooklyn the next day to plan a robbery that Thompson would commit to repay his debt. Graham provided Thompson with a MAC–10 to commit the robbery and directed him to rob a jewelry store on Canal Street in Manhattan. Though Thompson ultimately did not commit the robbery due to the presence of a traffic policeman and a crowd of people around the store, later that same day or the next day Redrick saw Graham wearing the Jesus head that had been stolen from the Diamond Oro.
As relevant here, Graham was indicted on the following charges: Count Five, conspiracy to extort Thompson, in violation of 18 U.S.C. §§ 1951(a) and 3551 et seq.; Count Six, extortion of Thompson, in violation of 18 U.S.C. §§ 1951(a), 2, and 3551et seq.; Count Ten, discharging a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 2, and 3551et seq.; and Count Eleven, using an explosive to commit a felony, in violation of 18 U.S.C. §§ 844(h)(1), 2, and 3551et seq.4 Count Ten charged that Graham was subject to a mandatory consecutive 10–year prison term for discharging the 9–millimeter semiautomatic into the ground during and in relation to the extortion of Thompson, while Count Eleven charged that the cartridge in the gun constituted an explosive used by Thompson to commit the extortion, for which he was also liable for a mandatory consecutive 10–year term.
Trial began on January 3, 2007. Agent John McKenna (“McKenna”) of the Bureauof Alcohol, Tobacco and Firearms (“ATF”) testified for the Government regarding how firearms and ammunition work. McKenna explained the mechanics of a semiautomatic pistol of the type fired by Graham during the extortion of Thompson:
When you pull the trigger, the mechanics ... will cause a hammer to fall, which will cause a firing pin to move forward, strike the rear of the ammunition, and in striking the rear of the ammunition, it will strike an area called the primer, which contains very volatile explosive material in it. So just the mere friction of it will cause a reaction and a fire.
From there, that primer will then light a propellant powder that is in the casing area. That ... propellant powder ... will burn very, very rapidly and create a lot of gas and heat. The gas is now looking for an area to escape, and it will cause the projectile at the top of the ammunition, the bullet, to then exit the firearm down the barrel and then out the firearm.
McKenna characterized this process as a “mini-explosion” within the bullet.
On February 16, 2007, the jury returned a verdict of guilty on Counts Five, Six, Ten, and Eleven of the Indictment, regarding the Thompson extortion. The jury also found Graham guilty of Counts One, Two, Three, and Seven, acquitting him as to Counts Four, Eight, Nine, and Twelve.
With regard to Counts Five, Six, and Eleven, Graham moved for a...
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