United States v. Gray

• Decision Date: 25 August 2017
• Docket Number: No. CR-15-08076-PCT-DGC,CR-15-08076-PCT-DGC
• Parties: United States of America, Plaintiff, v. Kyle Filbert Gray (001) Devan Edward Leonard (002), Defendants.
• Court: U.S. District Court — District of Arizona

United States of America, Plaintiff, v. Kyle Filbert Gray (001) Devan Edward Leonard (002), Defendants.

No. CR-15-08076-PCT-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 25, 2017

ORDER

Defendants Kyle Gray and Devan Leonard, along with others, are charged in a Second Superseding Indictment with conspiracy and other offenses under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. Doc. 131. Gray has filed a motion to dismiss Counts 9 and 10 (Doc. 225); a motion to suppress cell-site location information and derivative cell phone expert testimony (Doc. 229); a motion to dismiss the indictment's notice of enhanced sentencing, or, in the alternative, for a bill of particulars (Doc. 234); a motion to dismiss Count 1, or, in the alternative, to strike state racketeering predicates (Doc. 242); a motion to sever trial on Count 12 (Doc. 243); and a motion to dismiss Count 1 as unconstitutional (Doc. 248). Leonard has moved to suppress physical evidence. Doc. 236. Leonard has also joined Gray's motion to dismiss Counts 9 and 10 (Doc. 237); motion to dismiss the indictment's notice of enhanced sentencing (Doc. 238); motion to suppress cell-site location information (Doc. 239); and motion to dismiss Count 1, or, in the alternative, to strike state racketeering predicates (Doc. 245). The motions are fully briefed, and the Court held an evidentiary hearing and heard oral argument on August 18, 2017. For the reasons stated below, the Court will deny Defendants' motions.

I. Background.

The Second Superseding Indictment brings charges against Defendants Gray and Leonard, and also against Randall Franklin Begay, Lucille Jean Leonard, and Uriah Thomas Shay, each of whom is alleged to be an enrolled member of the Navajo Nation, a federally recognized tribe. Doc. 131. Count 1 alleges that all Defendants participated in a RICO conspiracy through their association with the Red Skin Kingz ("RSK"), an allegedly violent street gang. Id. The indictment's 18 remaining counts charge that Gray, Leonard,¹ and Begay committed various criminal acts while associated with the RICO conspiracy. Id. A jury trial is scheduled for January 23, 2018. Doc. 177.

II. Motion to Dismiss Counts 9 and 10 (Doc. 225).

Count 9 alleges that Gray and Leonard violated 18 U.S.C. § 924(j) when they committed the second-degree murder of T.S. as charged in Count 8. Doc. 131 at 17. Section 924(j) applies when a defendant causes death in the course of violating 18 U.S.C. § 924(c), which in turn applies when a firearm is used in a "crime of violence." Count 10 alleges that Gray and Leonard directly violated 18 U.S.C. § 924(c) - specifically § 924(c)(1)(A)(iii) - by knowingly using, carrying, and discharging a firearm during the "crime of violence" charged in Count 8. Id. Thus, Counts 9 and 10 each depend upon the second-degree murder charged in Count 8 being a "crime of violence."

"Crime of violence" is defined in § 924(c)(3):

For purposes of this subsection the term "crime of violence" means an offense that is a felony and—(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). Part (A) of this definition is commonly referred to as the "force clause.'" Part (B) is known as the "residual clause."

Defendants argue that the second-degree murder charged in Count 8 - an alleged violation of 18 U.S.C. § 1111 - is not a crime of violence within either clause of this definition, and therefore cannot form the basis for the charges in Counts 9 and 10. They ask the Court to dismiss those counts.

A. Force Clause.

To determine whether a crime qualifies as a crime of violence, courts in the Ninth Circuit use a categorical approach. See United States v. Calvillo-Palacios, 860 F.3d 1285, 1288 (9th Cir. 2017). In this case, the categorical approach requires the Court to decide whether the full range of conduct proscribed by the second-degree murder statute can be categorized as a crime of violence. If some conduct covered by the statute does not fit the definition of a crime of violence, then conviction under the statute is not for a crime of violence.

1. Can a Crime of Violence Be Committed Recklessly?

Defendants cite Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th Cir. 2006) (en banc), for the proposition that a crime of violence "must involve the intentional use of force against the person or property of another." Id. at 1132 (emphasis added); Doc. 225 at 7-8. Because one can commit second-degree murder with a mens rea of recklessness, Defendants argue that the crime can be committed without an intentional use of force and therefore is not a categorical crime of violence. Doc. 225 at 10-11.

Before the decision in Fernandez-Ruiz, it was "well established in this circuit that crimes involving the reckless use of force could be crimes of violence[,]" based on theconclusion that "recklessness 'requires conscious disregard of a risk of a harm that the defendant is aware of.'" Fernandez-Ruiz, 466 F.3d at 1126 (quoting United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001)). But after the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), the Ninth Circuit reversed direction in Fernandez-Ruiz. 466 F.3d at 1127-29. In Leocal, the Supreme Court held that the negligent or accidental use of force is not a crime of violence. Leocal, 543 U.S. at 11-12. Although Fernandez-Ruiz recognized that Leocal reserved the question of whether the reckless use of force is a crime of violence, 466 F.3d at 1127, the Ninth Circuit concurred with decisions from the Third and Fourth Circuits that the "reasoning of Leocal . . . extends to crimes involving the reckless use of force." Id. at 1127-29 (citing Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005); Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005); Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005); Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. 2005)).

The Ninth Circuit found the Third Circuit's opinion in Oyebanji particularly persuasive. Id. at 1129. Oyebanji addressed a conviction for vehicular homicide under New Jersey law. Id. Oyebanji concluded that "even though New Jersey's definition of recklessness involved conscious disregard of a substantial and unjustifiable risk, the reckless use of force was not sufficiently 'intentional' to prevent an offense from being accidental." Id. Applying this reasoning, the Ninth Circuit in Fernandez-Ruiz held that the petitioner's misdemeanor domestic violence conviction was not a categorical crime of violence under 18 U.S.C. § 16(a). Id. at 1132. The Ninth Circuit held that "[i]n light of Leocal, we expressly overrule our cases holding that crimes of violence under 18 U.S.C. § 16 may include offenses committed through the reckless, or grossly negligent, use of force." Id.

Cases decided after Fernandez-Ruiz have restated its position on crimes of violence. See Covarrubias Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) ("The effect of our holdings is that in order to be a predicate offense under either 18 U.S.C. § 16 approach, the underlying offense must require proof of an intentional use of force or asubstantial risk that force will be intentionally used during its commission." (citation omitted; emphasis in original)); see also United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (considering whether robbery was a "violent felony" for purposes of 18 U.S.C. § 924(e)(2)(B), the Ninth Circuit interpreted Leocal to require the use of force to be "intentional, not just reckless or negligent"). The Ninth Circuit has also acknowledged, however, that the reasoning of Fernandez-Ruiz now rests on shaky ground. Following the Supreme Court's decision in Voisine v. United States, 136 S.Ct. 2272 (2016), the Ninth Circuit acknowledged that Voisine suggests that "reckless conduct indeed can constitute a crime of violence." United States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016) (citing Voisine, 136 S.Ct. at 2279-80).

Whatever the eventual outcome of this ongoing issue, the Court concludes that Counts 9 and 10 are not controlled by Fernandez-Ruiz because second-degree murder under 18 U.S.C. § 1111 cannot be based on mere recklessness. A conviction under § 1111 requires, at the least, that a defendant act "recklessly with extreme disregard for human life." See Model Criminal Jury Instruction 8.108 (9th Cir. June 2017) (emphasis added). This higher standard of recklessness "require[s] a finding of extreme recklessness evincing disregard for human life, not simple recklessness." United States v. Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010); see also United States v. Wilson, 221 F. App'x 551, 553 (9th Cir. 2007) (unpublished) (noting distinction "between mere recklessness and recklessness with extreme disregard for human life"); United States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987) ("disregard for human life becomes more callous, wanton or reckless, and more probative of malice aforethought, as it approaches a mental state comparable to deliberation and intent"); United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975) ("Malice aforethought . . . embraces the state of mind with which one intentionally commits a wrongful act without legal justification or excuse. It may be inferred from circumstances which show 'a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences.'" (citation omitted)). Thisheightened standard differs from the mere recklessness found incapable of supporting a crime of violence in Fernandez-Ruiz.

What is more, the Ninth Circuit has not applied the rule of Fernandez-Ruiz to second-degree murder. Since Fernandez-Ruiz was decided in 2006, the Ninth Circuit has held that second-degree murder is a crime of...