United States v. Van McDuffy

• Decision Date: 13 July 2016
• Docket Number: Case No. 3:13-cr-00108-MMD-VPC
• Citation: 194 F.Supp.3d 1054
• Parties: UNITED STATES of America, Plaintiff, v. Van MCDUFFY, aka Van McDuffie, Defendant.
• Court: U.S. District Court — District of Nevada

194 F.Supp.3d 1054

UNITED STATES of America, Plaintiff,

v.Van MCDUFFY, aka Van McDuffie, Defendant.

Case No. 3:13-cr-00108-MMD-VPC

United States District Court, D. Nevada.

Signed July 13, 2016

Megan Rachow, U.S. Attorney's Office, Reno, NV, for Plaintiff.

Lauren D. Gorman, Michael Kennedy, Federal Public Defender, Reno, NV, for Defendant.

ORDER

MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

I. SUMMARY

Defendant Van McDuffy was indicted on one count of bank robbery with a dangerous weapon resulting in death and one count of use of a firearm during a crime of violence. (ECF No 11.) Before the Court are the following unresolved motions: motion to dismiss count two ("Motion to Dismiss") (ECF No 42); motion to recognize the specific intent mens rea requirement ("Motion re Specific Intent") (ECF No. 45); and motion to suppress ("Motion to Suppress") (ECF No. 46). The Court held an evidentiary hearing on the Motion to Suppress.¹ (ECF Nos. 69, 71.) The government offered the testimony of FBI Special Agent Chris Taylor and Reno Police Department ("RPD") Detective David Millsap; McDuffy offered the testimony of its expert witness, Dr. Robert Shaffer. (Id. ) The Court also heard argument on the Motion to Dismiss at the end of the first part of the evidentiary hearing. (ECF No. 69.) The Court has reviewed the briefs relating to these motions. (ECF Nos. 42, 58, 66, 45, 56, 65, 46, 57 & 64.)

II. BACKGROUND

On October 16, 2013, McDuffy allegedly entered the Bank, brandished a firearm, and demanded money from a teller. A customer intervened to tell McDuffy to leave, and McDuffy allegedly shot the customer. McDuffy then demanded money from another teller, who complied. McDuffy left the Bank. An off-duty RPD officer, who was present during the incident, followed McDuffy and later placed him under arrest.

McDuffy was held in a room at the RPD's homicide unit for about 46 minutes before he was interrogated and given his Miranda warnings. (Gov't Exh. 1.² ) During that time, Foremaster, an RPD detective, sat in the room with McDuffy and engaged McDuffy in conversation. The two discussed McDuffy's background but did not discuss the incident that led to McDuffy's arrest. (Id. at 00:00-46:21; ECF No. 46-1 at 3-21.) An RPD homicide detective, David Millsap, and FBI Special Agent Chris Taylor (collectively, "the Officers") conducted McDuffy's interrogation. They talked to him for about 15 minutes, during which time they obtained information relating to McDuffy's background, including the length of time he has lived in Reno and his employment. (Gov't Exh. 1 at 46:22-57:00; ECF No. 46-1 at 21-28.) They then advised McDuffy of his Miranda rights. (ECF No. 46-1 at 28-29.) McDuffy waived his rights and during the interrogation, admitted that he robbed the Bank and shot a patron. (Id. at 3-47.) McDuffy consented to a search of his residence and a storage unit where he indicated he had gone to retrieve the firearm before he robbed the Bank. (Gov't Exhs. 3, 4.)

McDuffy was indicted on two counts. Count one charges McDuffy with bank robbery with a dangerous weapon resulting in death in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2113(e). (ECF No. 11.) Count two charges McDuffy with the use of a firearm "during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, that is, bank robbery with a dangerous weapon resulting in death as set forth in count one of the Indictment, and did cause the death of C.B.S. through the use of a firearm" in violation of 18 U.S.C. § 924(j). (Id. )

III. MOTION TO DISMISS

McDuffy offers two arguments in seeking to dismiss count two. First, the holding in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which found the residual clause under the Armed Career Criminal Act ("ACCA") to be unconstitutional, should be extended to the residual clause of 18 U.S.C. § 924(c)(3)(B). Second, under the elements clause found in 18 U.S.C. § 924(c)(3)(A), the offense must involve the intentional use of force to qualify as a crime of violence, and because bank robbery with a dangerous weapon resulting in death need not involve intentional killing, it is not a categorical crime of violence under § 924(c)(3)(A). The government responds that the residual clause of § 924(c)(3)(B) does not suffer the same constitutional defects as the residual clause of the ACCA. The government further argues that bank robbery and armed bank robbery qualify as crimes of violence under the elements clause of § 924(c)(3)(A) under established Ninth Circuit precedent.

First and foremost, the Court declines to address McDuffy's argument that the residual clause of § 924(c)(3)(B) is unconstitutional under Johnson because the Court finds that the predicate offense—bank robbery with a dangerous weapon resulting in death—qualifies as a crime of violence under § 924(c)(3)(A). The Court need not look to the residual clause of § 924(c)(3)(B).

Count two charges McDuffy with use of a firearm during a crime of violence causing death in violation of 18 U.S.C. § 924(j)(1). Section 924(j)(1) provides that "[a] person, who in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall—(1) if the killing is a murder (as defined in section 1111) be punished by death or by imprisonment for any term of years or for life." As pertinent here, subsection (c)—§ 924(c)(1)(A) —references "any crime of violence," which is defined under § 924(c)(3) as follows: "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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." § 924(c)(3)(A)-(B) (emphasis added). Section 924(j)(1) requires proof of an underlying predicate offense of a crime of violence that falls under either § 924(c)(3)(A) or § 924(c)(3)(B)'s definition. Thus, the pertinent question is whether bank robbery with a dangerous weapon resulting in death in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2113(e) qualifies as a crime of violence under § 924(c)(3)(A).

Resolution of this question requires application of the three-step process set forth in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir.2015) (applying the analysis to determine whether a conviction under California's theft statute may qualify as an "aggravated felony"); United States v. Sahagun – Gallegos , 782 F.3d 1094, 1098 (9th Cir.2015) (applying the analysis to determine whether a prior conviction qualifies as a "crime of violence" under the Sentencing Guidelines). First, under the "categorical approach," courts must determine whether the statute of conviction is categorically a "crime of violence" by comparing the elements of the statute of conviction with the generic federal definition." Sahagun – Gallegos , 782 F.3d at 1098. If the elements of the offense are the same or narrower than the elements of the generic federal offense, then the offense is "a categorical match" and qualifies as a crime of violence. See Lopez – Valencia , 798 F.3d at 867. "When a statute is 'overbroad,' meaning that it criminalizes conduct that goes beyond the elements of the federal offense, [courts] turn to step two: determining whether the statute is ‘divisible’ or ‘indivisible.’ " Id. at 867–68 (citing Medina – Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir.2014) ). If it is divisible, then the court turns to step three—the "modified categorical approach" under which the court "may examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating." Id. at 868. The Court finds that the predicate offense for count two qualifies as a crime of violence under the categorical approach, rendering these latter two steps inapplicable.

Applying the "categorical approach" here, the Court compares the elements of the offense—bank robbery in violation of §§ 2113(a), 2113(d), and 2113(e) —with the generic federal definition of a "crime of violence" under § 924(c)(3)(A). Section 2113 defines bank robbery as follows:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association;

* * *

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

18 U.S.C. § 2113(a), (d), (e). Section 924(c)(3)(A) defines a "crime of violence" as "an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another." One of the elements of bank robbery is a taking "by force and violence, or by intimidation." § 2113(a). The elements of bank robbery under § 2113(a) are not broader than the conduct covered under § 924(c)(3)(A). Compare § 2113(a)with § 924(c)(3)(A). Bank robbery thus qualifies as a crime of violence under the...