United States v. Robinson, 16-cr-545-ADS-AYS-1
| Decision Date | 01 November 2017 |
| Docket Number | 16-cr-545-ADS-AYS-1 |
| Parties | UNITED STATES OF AMERICA v. TYRONE ROBINSON, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
United States Attorney's Office for the Eastern District of New York
Central Islip, NY 11722
By: Allen Lee Bode, Assistant United States Attorney
666 Old Country Road
Garden City, NY 11530
By: Kevin James Keating, Esq., of Counsel
On March 15, 2017, the Defendant Tyrone Robinson (the "Defendant") was charged in a superseding indictment with thirty-two counts relating to nine gunpoint robberies and attempted robberies that occurred in Nassau County, as well as accompanying conspiracy and firearm charges.
Presently before the Court are several motions by the Defendant: to dismiss the alleged violations of 18 U.S.C. § 924(c) for failure to state a claim; to suppress statements made by the Defendant during a videotaped interrogation; to sever or bifurcate the counts alleging violation of 18 U.S.C. § 922(g) from the other counts; to compel election between multiplicitous conspiracy counts; to suppress a police officer identification; to suppress evidence recovered from the Defendant's residence by NYS parole officers pursuant to a parole arrest warrant on June 10, 2016; and to suppress all evidence recovered pursuant to the execution of a search warrant on July 8, 2016.
For the following reasons, the Court grants the Defendant's motion to bifurcate the felon-in-possession counts from the other counts; as well as his motion for a suppression hearing regarding the seizure of his cellular phone during the execution of the parole arrest warrant on June 10, 2016. The Defendant's remaining motions are denied.
On October 9, 2016, the Government filed a complaint against the Defendant charging the Defendant with alleged violations of 18 U.S.C. § 1951(a), Hobbs Act robbery, and 18 U.S.C. § 924(c), use of a firearm in furtherance of a crime of violence.
On January 11, 2017, the Government filed a 22-count indictment against the Defendant.
On March 15, 2017, the Government filed a 32-count superseding indictment charging the Defendant with multiple counts of Hobbs Act robbery, Hobbs Act attempted robbery, and Hobbs Act robbery conspiracy, 18 U.S.C. §§ 1951(a), 2 and 3551 et seq.; brandishing one or more firearms during crimes of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 2 and 3551 et seq.; possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 3551 et seq.; discharging one or more firearms during crimes of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 924(c)(1)(C)(i), 2 and 3551 et seq.; firearm-related murder, 18 U.S.C. §§ 924(j)(1), 2 and 3551 et seq.; and possession of ammunition by a felon, 18 U.S.C. §§ 922(g)(1), 924(A)(2) and 3551 et seq..
On May 8, 2017, the Defendant filed the instant motions, and he supplemented his motions on September 22, 2017.
The indictment alleges that the Defendant was involved in numerous home invasions, and that he possessed a firearm on a number of occasions. As not all facts are relevant to the instant motions, the Court will state the relevant facts when they are necessary to the determination of the specific motion.
The Defendant contends that all alleged violations of 18 U.S.C. §924(c) ("Section 924(c)") must be dismissed because Hobbs Act robbery does not qualify as a crime of violence under Section 924(c). The Court finds that the Second Circuit has explicitly ruled that Hobbs Act robbery is a crime of violence as defined in Section 924(c), and that the Court is therefore constrained to follow that precedent.
Section 924(c)(1)(A) provides, in pertinent part:
18 U.S.C. § 924(c). A "crime of violence" is defined as:
The superseding indictment indicates that the crime(s) of violence which form the basis of the Defendant's alleged Section 924(c) violations are the numerous robberies and attempted robberies committed in violation of 18 U.S.C. § 1951(a).
Section 1951(a) states that:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). The same section defines robbery as:
[T]he unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining . . . .
As the Defendant admits, the Second Circuit ruled in United States v. Hill, 832 F.3d 135 (2d Cir. 2016) that "Hobbs Act robbery 'has as an element the use, attempted use, or threatened use of physical force against the person or property of another,'" id. at 144 (quoting 18 U.S.C. § 924(c)(3)(A), and therefore qualifies as a crime of violence under that statute. The Circuit further stated that "[e]ven if Hobbs Act robbery did not qualify as a crime of violence pursuant to § 924(c)(3)(A), such a robbery unequivocally qualifies as a crime of violence pursuant to § 924(c)(3)(B) because it, '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. at 145 (quoting 18 U.S.C. § 924(c)(3)(B). The Hill Court explicitly rejected many of the arguments raisedby the Defendant here, including that the "substantial risk of force" clause contained in Section 924(c)(3)(B) is void for vagueness in light of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 ("Johnson II") (2015). In Johnson II, the Supreme Court found that the residual clause of the Armed Career Criminal Act violated the Constitution's guarantees of due process by being unconstitutionally vague.
As to the defendant's argument in Hill that Section 924(c)(3)(B) should also be held unconstitutionally vague, the Second Circuit stated that:
[T]he Supreme Court's explanation for its conclusion in Johnson II renders that case inapplicable to the risk-of-force clause at issue here. Section 924(c)(3)(B) does not involve the double-layered uncertainty present in Johnson II. . . . Assessing whether a felony, by its nature, poses a substantial risk that "physical force against the person or property of another may be used in the course of committing the offense," § 924(c)(3)(B), however, is a far narrower and simpler undertaking than divining whether a felony, not being one of four enumerated, but disparate crimes, "otherwise involves conduct that presents a serious potential risk of physical injury to another," § 924(e)(2)(B)(ii).
Hill, 832 F.3d at 146; see also Diaz v. United States, No. 14-CR-442 (JMF), 2017 WL 112609, at *2 (S.D.N.Y. Jan. 11, 2017) (); United States v. Conyers, No. S13 15-CR-537 (VEC), 2016 WL 7189850, at *4 (S.D.N.Y. Dec. 9, 2016) ; United States v. Biba, 219 F. Supp. 3d 347, 354 (E.D.N.Y. 2016) ().
This Court is bound by the Second Circuit's decision in Hill, unless and until the Second Circuit or the United States Supreme Court overrules it.
Therefore, the Court finds that Hobbs Act robbery constitutes a crime of violence under Sections 924(c)(3)(A) and 924(c)(3)(B). Accordingly, the Defendant's motion to dismiss those counts is denied.
The Defendant moves to suppress videotaped statements that he made to an agent of the Bureau of Alcohol, Tobacco, and Firearms (the "ATF"), because he argues that his Miranda waiver was not knowing, intelligent, and voluntary. The Government states that that it "does not intend to introduce [the Defendant's] statements . . . in its case-in-chief," but that it "reserve[s] the right to use the statements to impeach [the Defendant] if he takes the witness stand." (Gov't Omnibus Resp. to Def.'s Mots. (ECF No. 69) ("Gov't Opp.") at 10).
Accordingly, the Defendant's motion to suppress...
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