United States v. Marsalis

• Decision Date: 07 June 2018
• Docket Number: 13–CR–224 (MKB)
• Citation: 314 F.Supp.3d 462
• Parties: UNITED STATES of America, v. James MARSALIS, Defendant.
• Court: U.S. District Court — Eastern District of New York

314 F.Supp.3d 462

UNITED STATES of America,

v.James MARSALIS, Defendant.

13–CR–224 (MKB)

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

Signed June 7, 2018

Lisa Hoyes, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District JudgeDefendant James Marsalis is charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (Indictment dated April 8, 2013, Docket Entry No. 8.) Because Defendant is charged pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act of 1984 ("ACCA"), he faces a mandatory minimum sentence of fifteen years of imprisonment if convicted. On March 1, 2016, Defendant moved to dismiss the indictment for failure to state an offense under the ACCA pursuant to Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure.¹ (Def. Mot. to Dismiss ("Def. Mot."), Docket Entry No. 43.) Defendant asserts that the indictment must be dismissed because he does not have three qualifying convictions to satisfy section 924(e)(1), arguing that his first-degree robbery conviction pursuant to New York Penal Law § 160.15(4) is not a "violent felony" within the meaning of the ACCA.² (Id. ; Def. Letter Reply ("Def. Reply") 1, Docket Entry No. 47.) For the reasons discussed below, the Court denies Defendant's motion to dismiss.

I. Discussion

a. Legal standard

Indictments must contain both "a plain, concise, and definite written statement of the essential facts constituting the offense charged" and a "citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." Fed. R. Crim. P. 7(c)(1) ; United States v. Dupree , 870 F.3d 62, 70 (2d Cir. 2017). An indictment is to be "read ... ‘to include facts which are necessarily implied by the specific allegations’ therein." United States v. Faison , 393 Fed.Appx. 754, 757 (2d Cir. 2010) (quoting United States v. LaSpina , 299 F.3d 165, 177 (2d Cir. 2002) ). "[C]ommon sense and reason are more important than technicalities" and the indictment "need not be perfect." United States v. Stringer , 730 F.3d 120, 124 (2d Cir. 2013) (quoting United States v. De La Pava , 268 F.3d 157, 162 (2d Cir. 2001) ); United States v. Faison , 393 Fed.Appx. 754, 757 (2d Cir. 2010) ("[I]t is not necessary to allege facts with technical precision, but rather, to outline the essential elements [required by Rule 7(c)(1) ]."). "An indictment is sufficient if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ " Stringer , 730 F.3d at 124 (quoting Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ); see also Dupree , 870 F.3d at 70 ("An indictment that does not set out all of the essential elements of the offense charged is defective." (quoting United States v. Gonzalez , 686 F.3d 122, 127 (2d Cir. 2012) ) ).

Pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, a defendant may move to dismiss an indictment for various defects, including "a failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B) ; United States v. Aleynikov , 676 F.3d 71, 75–76 (2d Cir. 2012) ("[A] federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute." (citation omitted) ). Courts must accept as true the allegations in an indictment for purposes of evaluating a motion to dismiss. See United States v. Velastegui , 199 F.3d 590, 592 n.2 (2d Cir. 1999) ; United States v. Murgio , 209 F.Supp.3d 698, 706 (S.D.N.Y. 2016) ("In evaluating a motion to dismiss, the [c]ourt ‘accept[s] as true all of the allegations of the indictment.’ " (quoting United States v. Goldberg , 756 F.2d 949, 950 (2d Cir. 1985) ) ). As a result, the Second Circuit "ha[s] consistently upheld indictments that do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Ghayth , 709 Fed.Appx. 718, 723 (2d Cir. 2017) (quoting United States v. Pirro , 212 F.3d 86, 92 (2d Cir. 2000) ).

b. The indictment may not be dismissed solely because it references 18 U.S.C. § 924(e)(1)

Defendant seeks dismissal of the indictment "based on the inapplicability of the ACCA." (Def. Reply 1.) He argues that "[t]he grand jury included the ACCA provision and alleged facts supporting it in the indictment," and that such inclusion speaks to the relevance of section 924(e)(1) to the indictment as a whole. (Id. ) Defendant thus argues that the indictment is defective, including as to section 922(g)(1), if his first-degree robbery conviction is not a violent felony within the meaning of the ACCA.

The Government contends that Defendant's motion is both premature and inaccurate. (Gov't Opp'n to Def. Mot. ("Gov't Opp'n") 3, Docket Entry No. 46.) The Government argues that the motion to dismiss "challenge[s] the applicability of a sentencing enhancement that only applies if the [D]efendant is found guilty of being a felon in possession of a firearm." (Id. ) The Government thus requests Defendant's motion be dismissed without prejudice to renew at sentencing. (Id. at 5.) As to the applicability of section 924(e)(1), the Government contends Defendant's first-degree robbery conviction is a violent felony within the meaning of the ACCA.

Defendant's argument that the indictment must be dismissed because it erroneously references the ACCA is meritless because section 924(e)(1) is neither a free-standing offense nor a substantive element of an offense. See United States v. Baldwin , 186 F.3d 99, 101 (2d Cir. 1999) ("[A]s a matter of statutory construction, it is evident that Congress understood [ section] 924(e) as a mechanism for sentence enhancement, rather than as a provision defining a freestanding offense."); see also United States v. Shields , 789 F.3d 733, 741 (7th Cir. 2015) ("We cannot accept the view that [ section] 924(e)(1), on its own, provides a substantive element of the offense that must be submitted to the jury."); United States v. Rumney , 867 F.2d 714, 717 (1st Cir. 1989) (holding section 924(e)(1) to be a sentence enhancer and not a substantive crime in agreement with nine other circuits to have addressed the issue).

Rather than challenge the sufficiency of the indictment as to section 922(g)(1), the only substantive offense, Defendant challenges the applicability of section 924(e)(1), a sentencing provision. However, "[i]ncluding a sentencing provision, such as [ section] 924(e)(1), in an indictment does not transform a sentencing factor into a substantive element." Shields , 789 F.3d at 742. Even if, as Defendant argues, the ACCA is inapplicable, its inapplicability cannot be used as a backdoor to challenge the actual substantive offense in an indictment. See United States v. Bates , 77 F.3d 1101, 1105 (8th Cir. 1996) ("References in the indictment to sentence enhancements such as section 924(e) are ‘mere surplusage’ and ‘may be disregarded if the remaining allegations are sufficient to charge a crime.’ " (citation omitted) ); United States v. Lowe , 860 F.2d 1370, 1381 (7th Cir. 1988) ("Under Rule 7(c)..., a miscitation such as the reference to [ section] 924(e) is harmless error and cannot be grounds for dismissing the indictment ... unless the defendant is misled by the erroneous reference and prejudiced thereby." (citations omitted) );³ United States v. Rule , No. 16-CR-00420, 2017 WL 3158873, at *2 (N.D. Ill. July 25, 2017) (denying motion to dismiss indictment because citation to section 924(e)(1) does not change its status as a sentencing provision); United States v. James , No. 15-CR-00049, 2016 WL 51268, at *7 (W.D. Ky. Jan. 4, 2016) ("Any argument as to [the defendant's] ineligibility (or eligibility) for an enhanced sentence under 18 U.S.C. § 924(e) is not the proper subject of a motion to dismiss because it is not a separate offense necessary to include in the indictment."); United States v. Monocchi , 836 F.Supp. 79, 82 (D. Conn. 1993) (denying motion to dismiss count one of indictment because "the quantity of narcotics involved in a count of conviction is not an element of the offense" at issue); see also United States v. Zorilla , No. 91-CR-733, 1991 WL 274486, at *3 (S.D.N.Y. Dec. 12, 1991) ("[ Section] 924(e)(1) is a sentence enhancement provision and each prior conviction need not be included in the indictment .... That does not mean, however, that including them in the indictment warrants dismissal." (citation omitted) ); but see United States v. Calix , No. 13-CR-582, 2014 WL 2084098, at *15 (S.D.N.Y. May 13, 2014) (granting motion to dismiss count relating to 18 U.S.C. §§ 922(g)(1) and 924(e)(1) because the indictment "fail[ed] to state all of the necessary elements of the charged offense" since the defendant was "not subject to enhanced sentencing under § 924(e)(1)").⁴ Accordingly, the Court denies Defendant's request to dismiss the indictment based on the inclusion of the ACCA sentencing enhancement provision.

c. Convictions pursuant to New York Penal Law § 160.15(4) are categorically violent felonies within the meaning of the ACCA.

Even if the inclusion of an inapplicable sentencing enhancement could be used to dismiss a substantive offense, the Court denies Defendant's request to do so because convictions pursuant to New York Penal Law § 160.15(4) are categorically violent felonies within the meaning of the ACCA. See Stuckey v. United States , 878 F.3d 62, 64 (2d Cir. 2017).

The Court only addresses the applicability of 18 U.S.C. § 924(e)(1) as an alternative rationale for denying Defendant's motion to dismiss the indictment. See United States v. Wallace , No. 15-CR-794, 2016 WL 4367961, at *11 (S.D.N.Y. Aug. 11, 2016) (considering motion to dismiss indictment based...