United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO DISMISS COUNT 32 [DOC.
CARAM STEEH, UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Quincy Graham's
motion to dismiss Count 32 pursuant to Fed. R. Crim. Proc.
12(b)(3)(B). The motion has been joined in by defendants
Adams, Arnold, Gooch, Rogers, Patterson, Robinson, Bailey,
Porter and Hicks [docs. 741, 743, 744, 745, 748, 749, 750,
751 and 760]. The motion has been briefed and the court heard
oral argument on January 4, 2017.
and the joining defendants (“defendants”) are
charged in Count I: RICO Conspiracy, 18 U.S.C. § 1962d,
and Count 32: Possession of a Firearm in Furtherance of a
Crime of Violence, 18 U.S.C. § 924(c); 2. Defendants
assert that Count 32 lacks specificity and fails to state an
offense under Fed. R. Crim. P. 12(b)(3)(B).
indictment satisfies constitutional requirements “if
it, first, contains the element of the offense charged and
fairly informs a defendant of the charge against which he
must defend, and second, enables him to plead an acquittal or
conviction in bar of future prosecutions for the same
offense.” Hamling v. United States, 418 U.S.
87, 117 (1974). “When assessing the sufficiency of the
charge, the examination focuses on the indictment itself, and
not on the underlying evidence of the crime.”
United States v. Landham, 251 F.3d 1072, 1080
(6th Cir. 2001). The essential elements of the
offense of 18 U.S.C. § 924(c) are: (a) that the
defendant possessed a firearm; and (b) that he did so in
furtherance of a crime of violence that he may be prosecuted
for in a court of the United States. Count 32 alleges that
defendants “did aid and abet each other and others
known and unknown to the Grand Jury, and did knowingly,
intentionally, and unlawfully possess firearms in
furtherance of a crime of violence . . . that is,
racketeering conspiracy as alleged in Count One . . .
32 refers back to the RICO conspiracy charge in Count One.
The Overt Acts section of Count One details dates and times
when SMB members possessed firearms. For example, Graham is
identified in Overt Acts 14 and 40 as possessing firearms.
(14) On or about July 5, 2015, QUINCY GRAHAM and DIONDRE
FITZPATRICK were found in Harper Woods, Michigan passed out
in a car with a loaded .40 caliber Smith & Wesson handgun
between GRAHAM's legs.
(40) On or about September 22, 2014, JEROME GOOCH and QUINCY
GRAHAM were found in an apartment in Charleston, West
Virginia that contained approximately 330 Oxycontin pills, a
loaded .45 caliber Glock handgun, and U.S. currency.
addition to the Indictment, the government has turned over
Jencks material and filed a Bill of Particulars as
to Count 32.
argues that the government bears the burden of showing that
the firearm was used “in furtherance of” a crime
of violence or drug trafficking crime. Mere possession of a
firearm cannot form the basis for a 924(c) offense.
United States v. Ray, 803 F.3d 244, 262
(6th Cir. 2015). “Racketeering
activity” is defined to include “any threat
involving murder, kidnapping, gambling, arson, robbery,
bribery, extortion, dealing in obscene matter, or dealing in
a controlled substance or listed chemical.” “In
furtherance” means that the firearm must promote or
facilitate the crime of violence or drug trafficking crime.
According to defendants, reference to Overt Acts that allege
mere possession of a firearm, without tying it to a
particular crime of violence, does not provide notice or
state an offense as required by the Due Process Clause, the
Sixth Amendment and Fed. R. Crim. P. 7(c).
government's theory with regard to the 924(c) charge in
Count 32 is that defendants possessed firearms in furtherance
of a crime of violence, which in this case was the
racketeering enterprise to commit murder, attempted murder,
robbery, obstruction of justice and dealing in controlled
substances. That is, the alleged racketeering conspiracy is
the crime of violence (the predicate act), and the defendants
aided or abetted and knowingly, intentionally and unlawfully
possessed firearms in furtherance thereof.
the Sixth Circuit did not directly address whether a
racketeering conspiracy qualifies as a predicate act for a
924(c) charge, it impliedly approved of such in United
States v. Nicholson, 2017 WL 5508537 (6th
Cir. 2017). Defendants in Nicholson challenged their
convictions under § 924(c) for using or carrying a
firearm during and in relation to a crime of violence, or
aiding and abetting that offense, related to a shooting
committed by a co-conspirator. The court stated that to be
convicted under an aiding and abetting theory, a defendant
must have advance knowledge that the plan would include a
firearm, but defendant did not need to know in advance that a
firearm would actually be used. Id. at *7
(citing Rosemond v. United States, 134 S.Ct. 1240,
1249 (2014)). The government must show that the defendant
“decided to join in the criminal venture . . . with
full awareness of its scope . . . including its use of a
firearm.” Id. (quoting United States v.
Johnson, 2017 WL 3263744, at *8 (6th Cir.
Aug. 1, 2017) (quoting Rosemond, 134 S.Ct. at
1249)). The Sixth Circuit considered the evidence presented
at trial and found that it was sufficient to sustain each
defendant's 924(c) conviction.
racketeering conspiracy can be the predicate crime of
violence to support a 924(c) charge such that defendants'
motion to dismiss is DENIED. The burden is on the government
to show at trial that defendants were part of the criminal
enterprise, and were aware that it included the use of
firearms to achieve its criminal purposes.
government acknowledges that for purposes of double jeopardy,
given the expansive conspiracy alleged covering the period
from 2005 to 2016, it will not be able to re-charge any of
the defendants with a 924(c) count for any of the firearms
identified in the Indictment, the Bill of Particulars and the
Jenks materials. For that matter, the government
will likewise not be able to bring a future robbery,
obstruction, murder, attempted murder or drug dealing charge
against any of the defendants if it occurred during the
timeframe covered by the conspiracy.
court finds that defendants' notice objection to the
indictment has been adequately addressed by the government.
The court is also generally satisfied that the government has
fairly informed the defendants of the charges against them as
it relates to ...