United States v. Pena

• Decision Date: 11 February 2016
• Docket Number: 15–cr–551 (AJN)
• Parties: United States of America, v. Alberto Pena, Defendant.
• Court: U.S. District Court — Southern District of New York

161 F.Supp.3d 268

United States of America,

v.Alberto Pena, Defendant.

15–cr–551 (AJN)

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

Signed February 11, 2016

Eli Jacob Mark, U.S. Attorney's Office, Matthew Joseph Laroche, Assistant U.S. Attorney, New York, NY, for United States of America.

OPINION & ORDER

ALISON J. NATHAN, District Judge:

Before the Court is Defendant Alberto Pena's motion to dismiss Count II of the indictment—now Count III of the superseding indictment—which charges him with brandishing a firearm during a crime of violence, or aiding and abetting the same, 18 U.S.C. § 924(c)(1)(A)(ii) & 2. For the reasons set forth below, Pena's motion is DENIED.

I. Background

On August 18, 2015, the Government unsealed a two-count indictment charging Pena and six others with Hobbs Act Robbery, 18 U.S.C. § 1951 & 2, and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) & 2. The indictment alleges that Defendants took part in a violent home invasion robbery in the Bronx on January 20, 2014, and that firearms were brandished during the robbery. Pena and four other codefendants were arrested, while two remain at large.

Trial for Pena is set to begin on February 29, 2016. On January 8, 2016, Pena moved to dismiss the firearms offense, Count II of the indictment. On January 28, 2016, the Government filed a superseding indictment, adding a count of conspiracy to commit Hobbs Act Robbery. Thus, Pena's motion is aimed at what is now Count III of the superseding indictment.

II. Legal Standard

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a defendant to move to dismiss a count of the indictment for failure to state an offense. “Since federal crimes are solely creatures of statute, a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute.” United States v. Aleynikov, 676 F.3d 71, 75–76 (2d Cir.2012) (citation and internal quotation marks omitted). The construction of a federal statute is a question of law. Id.

III. Analysis

Count III of the superseding indictment charges Pena with knowingly using or carrying firearms during and in relation to a crime of violence, or possessing firearms in furtherance of a crime of violence, or aiding and abetting the same, and that the firearms were brandished, under 18 U.S.C. § 924(c)(1)(A)(ii) & 2. Pena argues that the indictment fails to state an offense under 18 U.S.C. § 924(c) because the predicate charge of Hobbs Act robbery (i.e., the crime of violence during which the Government alleges a firearm was carried and brandished) is not a crime of violence. Section 924(c) contains a two-part definition of a crime of violence. First, an offense is a crime of violence within the meaning of the statute if it is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A) (“the Force Clause”). Second, an offense is a crime of violence if it is a felony “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.” Id. § 924(c)(3)(B) (“the Residual Clause”). Pena argues that Hobbs Act robbery is not a crime of violence under the Force Clause. He does not argue that it is not a crime of violence under the Residual Clause, but instead claims that the Residual Clause is void for vagueness under the Supreme Court's recent decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson (U.S.2015) ”).

A. The Categorical Approach

In analyzing whether an offense is a crime of violence under Section 924(c)(3), courts in the Second Circuit apply the categorical approach. United States v. Acosta, 470 F.3d 132, 135 (2d Cir.2006) (per curiam). Under the categorical approach, the court considers only “the intrinsic nature of the offense rather than ... the circumstances of the particular crime” alleged in determining whether a predicate offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Id. In doing so, the court looks for the minimum conduct to which there is a “realistic probability, not a theoretical possibility” that the statute would be applied. Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ; see Sampathkumar v. Holder, 573 Fed.Appx. 55, 57 (2d Cir.2014) (applying realistic probability standard to elements test). If the defendant argues for an unusual or counterintuitive application of a statute, the “realistic probability” standard cannot be met through “application of legal imagination” alone. Duenas–Alvarez, 549 U.S. at 193, 127 S.Ct. 815. “To show that realistic probability,” the defendant must point to a case in which the “courts in fact did apply the statute” in the manner he claims they would. Id.

Much of the case law interpreting what is and is not a crime of violence under the categorical approach was created in the context of 18 U.S.C. § 16, a statute defining crimes of violence in language “virtually identical” to Section 924(c)(3). Acosta, 470 F.3d at 134. The Second Circuit applies case law interpreting Section 16 to the Force Clause and Residual Clause of Section 924(c)(3). See id. at 134–35.

If a criminal statute is divisible, the court will apply what is known as the modified categorical approach. A divisible statute is one that “sets out one or more elements of the offense in the alternative.” Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). If some, but not all, of the alternative elements would produce a crime of violence, the court is permitted to modify the categorical approach by looking at a limited set of documents (including the indictment) to determine under which portion of the statute the defendant was charged. See id. The court then applies the categorical approach as normal to the portion of the statute actually at play in the case. See id. ; see also United States v. Barker, 723 F.3d 315, 319–20 (2d Cir.2013).

The Government argues that the Hobbs Act is a divisible statute, and that the modified categorical approach should apply. The Government observes that Section 1951(a) prohibits at least two crimes in the alternative, robbery and extortion. Gov't Br. at 6 n.4. This is true enough, but it does not provide any benefit to the Government. The modified categorical approach simply serves to identify which part of a divisible statute a defendant was charged under. All it would enable the Court to do in this case is to look to the indictment and see that Pena is charged with robbery rather than extortion, something that Pena does not contest. See Descamps, 133 S.Ct. at 2281. Pena's argument is instead that robbery as defined in Section 1951(b)(1) does not meet the requirements of the Force Clause. Since the Government does not argue that the Hobbs Act definition of robbery is itself divisible, the modified categorical approach has no bearing here. The Court will apply the standard categorical approach to Hobbs Act robbery in the analysis that follows.

B. The Meaning of “Physical Force” in 18 U.S.C. § 924(c)(3)

In order to determine whether Hobbs Act robbery is categorically a crime of violence under either the Force Clause or the Residual Clause, it is first necessary to understand the meaning of Section 924(c)(3)'s central term, “physical force.” Neither the Supreme Court nor the Second Circuit have interpreted the phrase “physical force” in Section 924(c)(3), but the Second Circuit has done so in the context of Section 16. The Second Circuit gives the word “force” in Section 16 its “ordinary meaning” of “power, violence, or pressure directed against a person or thing.” Santana v. Holder, 714 F.3d 140, 144 (2d Cir.2013) (citing Black's Law Dictionary (“Black's”) 656 (7th ed.1999)). It defines a “physical force” as “an influence acting within the physical world, a force of nature.” Id. These are the definitions that this Court will apply to the language of the Force Clause. See Acosta, 470 F.3d at 134–35 (applying interpretation of Section 16 to the “virtually identical” Section 924(c)(3) ).

Pena argues in his briefing for a different and more demanding definition of force. Relying on the Supreme Court's decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010),¹ Pena argues that the use of physical force in the Force Clause refers specifically to “strong physical force” or “violent force,” defined in Johnson as “force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. However, Johnson does not displace the Second Circuit's definition of the word “force” in favor of a heightened standard, as a brief review of the Johnson decision will make clear.

Johnson is a decision interpreting the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), a statutory provision written similarly to the Force Clause of Section 924(c)(3). The question in Johnson was whether Florida's felony offense of battery, a statute that could be satisfied by the slightest touch on the shoulder, was a violent felony under ACCA's version of the Force Clause, 18 U.S.C. § 924(e)(2)(B)(i). Johnson, 559 U.S. at 138, 130 S.Ct. 1265. The Supreme Court held that it was not.

In interpreting the phrase “physical force” in the ACCA, the Court first noted that the word “physical” “is clear in meaning but not of much help to our inquiry. It plainly refers to force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force.” Id. Turning to the word “force,” the Court adopted the word's general usage definition, just as the Second Circuit in Santana did for Section 16. Id. at 139, 130 S.Ct. 1265. The Court looked to two sources for the general usage definition. First, it turned to...