United States v. Smith
| Decision Date | 16 May 2022 |
| Docket Number | Criminal Action No. 95-154-8 (BAH) |
| Parties | UNITED STATES of America v. Gerald SMITH, Defendant. |
| Court | U.S. District Court — District of Columbia |
John Paul Gidez, Mark Hobel, John Perry Mannarino, Pamela Stever Satterfield, Assistant U.S. Attorneys, U.S. Attorney's Office for the District of Columbia, Washington, DC, Thomas Anthony Quinn, Assistant U.S. Attorney, DOJ-USAO, Civil Division, Washington, DC, for United States of America.
A.J. Kramer, Joanna Munson Perales, Benjamin M. Flick, Public Defenders, Federal Public Defender for the District of Columbia, Washington, DC, Gregory Stuart Smith, Law Offices of Gregory S. Smith, Washington, DC, for Defendant.
In 1996, defendant Gerald Smith was convicted, following a jury trial, of twenty-one violent crimes and gun offenses stemming from his membership in "the so-called Fern Street Crew, an organization which distributed crack cocaine for seven years in the District of Columbia and Maryland," with the "Crew's activities [ ] facilitated by its use of violence to defend territory from rival drug dealers and subvert the efforts of the criminal justice system." United States v. Sumler , 136 F.3d 188, 189 (D.C. Cir. 1998). Defendant was sentenced to life imprisonment on seventeen of his 21 convictions, and to a consecutive 65 years’ imprisonment on his remaining four convictions for using a firearm during a drug trafficking offense or crime of violence, in violation of 18 U.S.C. § 924(c) (collectively, the " § 924(c) convictions"). Sent'g Tr. (Nov. 25, 1996) at 34:8–35:15, ECF No. 464. He now seeks vacatur of his § 924(c) convictions—and the corresponding sentence of 65 years’ imprisonment—and a full resentencing, Def.’s Suppl. Mot. to Vacate J. Under 28 U.S.C. § 2255 ("Def.’s Mot.") at 3, ECF No. 622, based on the Supreme Court's more recent determination that the residual clause in the definition of "crime of violence" is unconstitutionally vague as that definition is used in the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2), see Johnson v. United States , 576 U.S. 591, 606, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and in 18 U.S.C. § 924(c)(3)(B), see United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2326, 204 L.Ed.2d 757 (2019).
After Davis , an offense only constitutes a "crime of violence" upon which a § 924(c) conviction may be predicated if the offense satisfies the "elements clause" of the definition, which requires the felony offense to have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Defendant argues that the predicate offenses on which his four § 924(c) convictions are based—namely, kidnapping, in violation of 18 U.S.C. § 1201, and continuing criminal enterprise murder ("CCE Murder"), in violation of 21 U.S.C. § 848(e)(1)(A) —do not meet the elements clause definition of "crime of violence" under 18 U.S.C. § 924(c)(3). Def.’s Mot. at 2–3.1
The government "agrees that defendant's § 924(c) conviction predicated on kidnapping must be vacated" but otherwise opposes the motion, arguing that defendant should be resentenced to the same aggregate term of life imprisonment, plus 65 years. Gov't’s Partial Opp'n to Def.’s Suppl. Mot. to Vacate J. Under [ ] 28 U.S.C. § 2255 ("Gov't’s Opp'n") at 1, 17, ECF No. 629. For the reasons set forth below, defendant's motion is granted to vacate his conviction on Count 23 for using a firearm during a kidnapping, along with the consecutive term of 20 years’ imprisonment predicated on that conviction. His motion is otherwise denied as to his § 924(c) convictions in Counts 20, 21, and 22, for using a firearm during CCE Murders, as is his motion for a full resentencing.2
Summarized below is relevant background for the resolution of the pending motion regarding defendant's offense conduct, convictions, and sentences, drawn largely from defendant's original sentencing hearing in 1996 and related documents, followed by an overview of the procedural history.
In July 1995, defendant was charged in a 61-count indictment with eleven co-defendants. Indictment, ECF No 4.3 The evidence at trial showed that, from at least 1992 to 1993, defendant was a "violent enforcer" for the Fern Street Crew. Def.’s Presentence Report ("PSR") ¶¶ 90, 174, ECF No. 693;4 see also Sumler , 136 F.3d at 189. Defendant "sold wholesale amounts of crack cocaine to street sellers in the neighborhood" and "was regularly armed[,] ... committing acts of violence that furthered the objects" of the organization. PSR ¶ 90. The evidence showed he was personally responsible for multiple murders "to eliminate rival sellers" and "enrich the enterprise." Id. ¶ 174.
Following a four-month trial, a jury found defendant guilty of all twenty-one counts with which he was charged, with those counts of conviction carrying the penalties indicated below at that time:
Retyped Superseding Indictment at 1–2, ECF No. 341; PSR ¶¶ 261–272; Verdict Form at 12–16, ECF No. 343.
Of particular relevance here, defendant was convicted for his role in a series of shootings in October 1992, stemming from violence between the Fern Street Crew and a rival gang, known as the Allison Street group, that resulted in the death of Marcus Murray, the injury of Anthony Welch, and the death of Victor Hartnett, "an older gentleman who just happened to be standing in the alley when Smith and [co-defendant] Jefferson were running back to their car" after shooting Murray and Welch. PSR ¶¶ 52–55. He was also convicted of the October 1992 murder of Ucal Riley, a rival drug dealer who lived nearby and had begun to take customers away from the Fern Street Crew, id. ¶¶ 91–94, and the December 1992 kidnapping of Eric Brake, id. ¶¶ 61–63, "in order to hurt [the] rival drug organization" of which Brake was a member, id. ¶ 174.
For the CCE Murder charges in Counts 10, 14, and 15, for which the murder victims were Riley, Murray, and Hartnett, respectively, the jury was instructed that a conviction on these three counts required finding, beyond a reasonable doubt, that (1) "some person or persons, not necessarily the defendant[ ], were operating" a CCE; (2) "the defendant[ ] intentionally killed, counseled, commanded, induced, procured, or caused the intentional killing of another or aided and abetted others who intentionally killed or caused the intentional killing of the decedent[s]"; (3) "the defendant[ ] had the special intent to kill the decedent[s]"; and (4) "the defendant committed the killings or participated in the killings while engaged in or working in furtherance" of a CCE. Trial Tr. (July 30, 1996) at 84:16–85:7, ECF No. 393. With regard to the third element, the jury was instructed that "specific intent to kill the decedent[s] ... means that the defendant acted with the purpose or conscious intention to cause death." Id. at 86:2–4. The instructions further stated that defendant could be found guilty of CCE Murder "even though he did not physically participate in the shooting that caused the victim's death, provided [the jury] find beyond a reasonable doubt that the essential elements" of CCE Murder had been established. Id. at 87:10–14.
On Counts 10, 14, and 15, the jury found defendant was guilty of the "[i]ntentional murder[s] ... while working in furtherance of a continuing criminal enterprise" of Riley "on or about October 6, 1992"; Murray "on or about October 19, 1992"; and Hartnett, "on or about October 19, 1992," respectively. Verdict Form at 14. On Count 18, the jury found defendant guilty of the "[k]idnapping of Eric Brake on or about December 1, 1992." Id. at 15. As for the § 924(c) convictions, the jury found defendant guilty: (1) on Count 20, of the "[u]se of a firearm during and in relation to a crime of violence or a drug trafficking crime on or about October 6, 1992," referring to the CCE Murder of Riley charged in Count 10; (2) on Count 21, of the "[u]se of a firearm during and in relation to a crime of violence or a drug trafficking crime on or about October 19, 1992," referring to the...
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