United States v. Medunjanin
| Decision Date | 06 October 2020 |
| Docket Number | 20-cv-2755 (BMC),10-cr-0019 (BMC),19-cv-2371 (BMC) |
| Parties | UNITED STATES OF AMERICA, v. ADIS MEDUNJANIN, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Before me is defendant's amended motion for habeas corpus relief under 28 U.S.C. § 2255. Defendant argues that (i) his conviction on two counts of the indictment under 18 U.S.C. § 924(c) should be vacated in light of recent Supreme Court precedent; (ii) his "enhanced" sentence for those two § 924(c) counts should be vacated; (iii) placing the § 924(c) counts before the jury unduly prejudiced his trial on the other counts; and (iv) he was denied effective cross-examination of the government's expert witness because the government failed to disclose classified discovery that would have revealed the expert's bias in favor of the government.
For the reasons described below, defendant's motion is granted in part and denied in part. Defendant's conviction on Count Nine of the indictment - possessing a destructive device in furtherance of the crimes of violence charged in Counts Two and Five, in violation of 18 U.S.C. § 924(c) - is vacated, but his conviction on the other § 924(c) count, Count Eleven, remains valid. I will enter an amended judgment reflecting the vacatur of Count Nine and changing defendant's term of imprisonment to 30 years' imprisonment on Count Eleven to run consecutive to a total of 65 years' imprisonment on the underlying counts.
In 2008, defendant and two other individuals traveled to Pakistan with the intent to join the Taliban and kill American soldiers in Afghanistan. They received military training from al-Qaeda leaders who encouraged them to return to the United States to conduct suicide attacks. In 2009, the three men met in New York City and agreed to conduct a coordinated suicide bombing attack on the New York City subway system. These events culminated in defendant's arrest in January 2010 after he drove to the Whitestone Expressway in Queens, New York, and deliberately caused a high-speed collision with another car, attempting to trigger an explosion to kill himself and others.
After a three-week trial, the jury convicted defendant on all counts charged in the superseding indictment: (1) conspiracy to use weapons of mass destruction against persons or property in the United States, in violation of 18 U.S.C. § 2332a(a)(2) (Count One); (2) conspiracy to commit murder abroad, in violation of 18 U.S.C. § 956(a)(1) (Count Two); (3) providing material support to al-Qaeda, in violation of 18 U.S.C. § 2339B (Count Three); (4) conspiring to provide material support to al-Qaeda, in violation of 18 U.S.C. § 2339B (Count Four); (5) receiving military-type training from al-Qaeda, in violation of 18 U.S.C. § 2339D (Count Five); (6) conspiring to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a) (Count Seven); (7) attempting to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a) (Count Eight); (8) possessing a destructive device in furtherance of the crimes of violence charged in Counts Two and Five, in violation of 18 U.S.C. § 924(c) (Count Nine); and (9) possessing a destructivedevice in furtherance of the crimes of violence charged in Counts One, Three, Four, Seven and Eight, in violation of 18 U.S.C. § 924(c) (Count Eleven).
On November 26, 2012, Judge Gleeson sentenced defendant to 65 years' imprisonment on Counts One, Two, Seven and Eight; 15 years' imprisonment on Counts Three and Four; 10 years' imprisonment on Count Five; 30 years' imprisonment on Count Nine; and life imprisonment on Count Eleven. The sentences on Counts One, Two, Three, Four, Five, Seven and Eight were imposed to run concurrently. The sentences on the two Section 924(c) counts (Counts Nine and Eleven) were imposed to run consecutively to the other counts and to each other, for a total of life imprisonment plus 95 years.
Defendant appealed his conviction, arguing principally that Judge Dearie (who handled the case prior to Judge Gleeson) erred in denying plaintiff's pretrial motion to suppress his post-arrest statements on the grounds that the questioning by the government violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), his Sixth Amendment right to counsel and his Fifth Amendment right to due process. The Second Circuit affirmed the judgment. See United States v. Medunjanin, 752 F.3d 576 (2d Cir. 2014).
In 2018, defendant filed a motion to file a successive petition for habeas relief under 28 U.S.C. § 2255 with the Second Circuit. The Second Circuit stayed the motion and defendant thereafter filed his first motion for habeas relief with this Court. The Second Circuit then denied the motion before it as unnecessary, explaining that the proposed § 2255 motion would not be successive because the "district court docket does not reflect the filing of any prior § 2255 motion by Petitioner, and a § 2255 motion filed in that court after the present proceeding was commenced remains pending." The Second Circuit transferred the proceedings to this Court and defendant's § 2255 motions are considered together here.
Because the government conceded in its response that one count of defendant's conviction must be vacated, I scheduled a resentencing, which has been delayed due to the COVID-19 pandemic. Defendant filed a motion to appoint counsel to assist in his resentencing.
Defendant argues that, because the Supreme Court has found the residual clause of 18 U.S.C. § 924(c)(3)(B) to be unconstitutionally vague, his convictions for Count Nine and Count Eleven must be vacated. The government concedes that defendant's conviction for Count Nine should be vacated but argues that the conviction for Count 11 remains valid.
Section 924(c) of Title 18 imposes a mandatory consecutive term of imprisonment when a defendant uses or carries a firearm or destructive device during, or possesses a firearm or destructive device in furtherance of, a crime of violence or drug trafficking crime. A crime of violence is a federal felony that:
18 U.S.C. § 924(c)(3). The first clause is known as the "elements clause" or "force clause," and the second the "residual clause" or "risk-of-force clause."
In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that § 924(c)'s residual clause is unconstitutionally vague.1 The Davis decision thus abrogated the SecondCircuit's prior holding in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), vacated 139 S. Ct. 2774 (2019), that applying a conduct-specific approach to § 924(c)'s residual clause avoids constitutional concerns and saves the clause, and implicitly abrogated Barrett's alternative holding that a conspiracy to commit a crime of violence is itself a crime of violence under the residual clause. See generally United States v. Barrett, 937 F.3d 126 (2d Cir. 2019).
By contrast, the "traditional, elements only, categorial approach" in § 924(c)'s elements clause was not at issue in Davis. See Barrett, 937 F.3d at 128. Thus, Davis did not impact the Second Circuit's interpretation of 924(c)'s elements clause, as set out in United States v. Hill, 890 F.3d 51 (2d Cir. 2018).
In Hill, the Second Circuit considered whether Hobbs Act robbery categorically failed to constitute a crime of violence under the elements clause, § 924(c)(3)(A). "Under the categorical approach, courts identify 'the minimum criminal conduct necessary for conviction under a particular statute.'" Hill, 890 F.3d at 55 (citation omitted). In doing so, courts look only to the statutory definitions - i.e., the elements - of the offense, and not to the particular underlying facts. See id. In employing this approach, "there must be 'a realistic probability, not a theoretical possibility,' that the statute at issue could be applied to conduct that does not constitute a crime of violence." Id. at 56 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
In a "narrow range of cases," courts may apply the "modified categorical approach" to determine whether a conviction is for a crime of violence, in which the court looks "beyond the statutory elements to the 'charging paper and jury instructions' used in a case." Descamps v. United States, 570 U.S. 254, 261 (2013). The modified approach is not an exception, but merelya tool for implementing the categorical approach when a defendant is convicted of violating a divisible statute. Id. at 263.
To evaluate whether an underlying offense constitutes a crime of violence under § 924(c)'s elements clause, it is necessary to understand the meaning of "physical force" in the statute. In Johnson v. United States, 559 U.S. 133 (2010), the Supreme Court analyzed § 924(e)(1)'s similarly worded elements clause, which states that a "violent felony" has "as an element the use, attempted use, or threatened use of physical force against the person of another." The Court interpreted "physical force" in this context as "violent force - i.e., force capable of causing physical pain or injury to another person." Johnson, 559 U.S. at 140. The similar wording of the elements clauses of § 924(e)(2)(B) and § 924(c)(3) informs my conclusion that the "physical force" required for the latter is also violent force capable of causing physical pain or injury to another. See United States v. Tabb, 949 F.3d 81, 84 (2d Cir. 2020) ()...
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