United States v. Harris
| Decision Date | 03 August 2018 |
| Docket Number | Case No. 17-CR-167-2-JPS |
| Citation | 323 F.Supp.3d 1065 |
| Parties | UNITED STATES of America, Plaintiff, v. Derrick L. HARRIS, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Margaret B. Honrath, Bridget J. Domaszek, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Plaintiff.
Patrick Cavanaugh Brennan, Brennan Law Offices LLC, Milwaukee, WI, for Defendant.
J.P. Stadtmueller, U.S. District JudgeDefendant Derrick L. Harris ("Harris") is charged in a two-count superseding indictment with offenses relating to retaliating against a police informant. (Docket # 123). Before the Court is the July 3, 2018 report and recommendation of Magistrate Judge Nancy Joseph as to Harris' motion to dismiss the superseding indictment, which she recommends should be denied. (Docket # 138). Harris filed an objection thereto on July 9, 2018. (Docket # 140). The objection is now fully briefed and, for the reasons stated below, it will be overruled.
On the evening of August 8, 2017, Harris and his co-defendants Jose Lazcon ("Lazcon"), Michael Bonds ("Bonds"), and Rashawn Bumpus ("Bumpus") were patrons at Cham Tap in Mount Pleasant, Wisconsin. Eventually, the four men encountered AV1, a confidential informant in the case of United States v. Tirado , 16-CR-168-LA (E.D. Wis.), at the tavern. Contentious argument ensued in several interconnected episodes occurring inside the bar and outside in the parking lot.
Eventually, it happened that AV1, having driven away from the bar, passed back by it in his car while Defendants were in the parking lot. Harris, who had armed himself with a handgun during the course of the evening, shot at AV1's car as it passed. The government contends that AV1's car was struck on the rear driver's side door by the bullet. Harris, however, asserts that he only fired a warning shot into some nearby treetops. Harris believes the damage to AV1's car is consistent with blunt force, not a bullet. Further, Harris contends that he was acting only in self-defense and had no idea that AV1 was an informant.
On October 3, 2017, the grand jury returned a three-count indictment against Harris and his co-defendants. Harris was charged with conspiracy to engage in conduct that caused damage to the tangible property of AV1 and threatened to cause bodily injury to AV1, in retaliation against AV1 for providing information to law enforcement related to the Tirado drug conspiracy, in violation of 18 U.S.C. § 1513(f). (Docket # 1 at 1). Harris was also charged with attempting to kill AV1 in retaliation for his providing information to law enforcement, in violation of 18 U.S.C. § 1513(a)(1)(B). Id. at 2. Finally, Harris was charged with discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Id. at 3.
On May 22, 2018, the grand jury returned a two-count superseding indictment against Lazcon and Harris. (Docket # 123).1 Count One charges both men with violating 18 U.S.C. § 1513(b)(2) when they knowingly engaged in conduct that caused damage to the tangible property of AV1 and threatened to cause bodily injury to AV1, in retaliation for AV1 acting as an informant in the Tirado matter. Id. at 1. Count Two charges both Defendants with discharging a firearm during a crime of violence—namely, retaliation against a police informant as charged in Count One—in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Id. at 2.
Harris filed a motion to dismiss both counts of the superseding indictment on June 15, 2018. (Docket # 130). He argued that the retaliation charge in Count One is impermissibly duplicitous and that the gun charge in Count Two cannot be premised on Count One, which he contends is not a crime of violence. After the motion was fully briefed, Magistrate Joseph issued her report and recommendation on July 3, 2018, recommending that Harris' motion be denied in full. (Docket # 138). Harris objected to that recommendation insofar as the magistrate recommended not to dismiss Count Two. (Docket # 140). He does not challenge Magistrate Joseph's determination as to Count One. Id. at 2–3. His objection is now fully briefed for this Court's consideration.
When reviewing a magistrate's recommendation, this Court is obliged to analyze de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. The Court's review encompasses both the magistrate's legal analysis and factual findings. Id. ; see also Fed. R. Crim. P. 59(b).
As noted above, Harris does not challenge Magistrate Joseph's recommendation to deny his motion to dismiss as it pertains to Count One. The Court will, therefore, confine its review of the report and recommendation to those portions that pertain to Count Two.2
3.1 Magistrate Joseph's Report and Recommendation
Before Magistrate Joseph, Harris argued that the predicate offense for the firearms charge in Count Two—the Section 1513(b) retaliation offense charged in Count One—does not qualify as a crime of violence and so cannot form a predicate for a Section 924(c) offense. Section 924(c)(3) defines a "crime of violence" as an offense that is a felony and 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). Paragraph (A) is known as the "elements" clause and paragraph (B) is the "residual" clause.
Magistrate Joseph, in reliance on United States v. Bowen , 228 F.Supp.3d 1204 (D. Colo. 2017), found that a Section 1513(b) offense qualifies as a crime of violence under the elements clause. (Docket # 138 at 4–8). This is because the crime of retaliating against an informant requires (1) bodily injury to the informant, (2) damage to the tangible property of the informant, or (3) a threat to do either. Id. at 7. Consequently, one cannot commit this offense without the use, attempted use, or threatened use of physical force against the person or property of another, as required by Section 924(c)(3)(A). Id. ; Bowen , 228 F.Supp.3d at 1207.
According to the magistrate, Harris placed too much emphasis on his belief that a small amount of physical force should not qualify under the elements clause. (Docket # 138 at 7). He relied on Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which examined the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA uses the term "violent felony," which is defined, in pertinent part, as a crime punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B). In Johnson , the Supreme Court observed that "[w]e think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson , 559 U.S. at 140, 130 S.Ct. 1265 (emphasis in original). Nevertheless, while the "merest touch" does not constitute "physical force," it does not follow that a great deal of force is needed; instead, qualifying physical force "might consist, for example, of only that degree of force necessary to inflict pain—a slap in the face, for example." Id. at 143, 130 S.Ct. 1265.
Applying that reasoning to the "crime of violence" analysis in this case, Magistrate Joseph concluded that only such physical force as is necessary to cause some modicum of damage to the property of another is sufficient for purposes of Section 924(c). (Docket # 138 at 7). Section 1513(b) requires no less than a modicum of damage to a person's property or a threat of the same, and so it passes the Johnson test. Id. The magistrate stated, "[i]t stands to reason...that vandalism, such as keying a car, would constitute sufficient ‘physical force’ against the property of another" for purposes of Section 924(c)(3)(A). Id. Thus, she concluded that Section 1513(b) is a viable predicate offense for Section 924(c). Id.
3.2 Harris' Objections
Harris believes that Magistrate Joseph erred in finding that a Section 1513(b) offense can qualify as a Section 924(c) predicate. He makes several specific arguments toward that end, none of which have merit.
First, Harris observes that the reasoning in Bowen , upon which Magistrate Joseph relied, was mere dictum. (Docket # 140 at 3). This is true, but irrelevant; this Court is clearly not bound even by the holding of Bowen , which is from a sister district court. Bowen is useful only insofar as it is persuasive, and on that basis Magistrate Joseph and this Court are entitled to rely upon it.
Second, Harris notes that no federal decision other than Bowen has addressed whether a Section 1513(b) offense can qualify as a predicate under Section 924(c). This too may be true, but as Magistrate Joseph demonstrated, the text of Section 1513(b) compels the conclusion she ultimately drew. Precedent on the point might have been helpful, but courts must apply the plain language of a statute when called upon to do so even in the first instance. Lamie v. U.S. Tr. , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) () (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A. , 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) ). Moreover, several Courts of Appeal have allowed a retaliation offense under ...
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