United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT ARNOLD'S MOTION TO DISMISS AND DENYING
MOTION FOR A BILL OF PARTICULARS [DOC. 1462]
GEORGE
CARAM STEEH, UNITED STATES DISTRICT JUDGE
This
matter is before the court on defendant Billy Arnold's
motion to dismiss several counts of the Sixth Superseding
Indictment and requesting a bill of particulars for three of
the aggravating factors contained in the Notice of Intent to
seek the death penalty. ECF No. 1462. The government filed
separate response briefs, ECF No. 1476, 1477, and defendant
filed a reply, ECF No. 1483. Because oral argument will not
aid the court's decisional process, Arnold's motion
will be decided based on the parties' briefing. E.D.
Mich. LR 7.1(f)(2). For the reasons stated below, the court
grants in part and denies in part defendant's motion.
I.
Motion to Dismiss
A.
Count 32 - Possession of a Firearm in Furtherance of a Crime
of Violence
In
Count 32, defendant is charged with possession of a firearm
in furtherance of a crime of violence. The alleged crime of
violence is racketeering conspiracy, as charged in Count 1.
Defendant argues that racketeering conspiracy is not a crime
of violence, so Count 32 must be dismissed. “Crime of
violence” is defined by statute as a felony offense
that “(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another” or “(B) . . . 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.” 18 U.S.C. § 924(c)(3).
The first part of the definition is known as the
“elements clause” and the second part is known as
the “residual clause.” The determination whether
a charged crime meets the definition of crime of violence is
based on a categorial approach that considers the elements
and nature of the offense and not the alleged facts of its
commission in the case at hand. See, e.g., United States
v. Robinson, 708 Fed.Appx. 272, 273 (6th Cir. 2017).
Defendant
argues that racketeering conspiracy itself, which is an
agreement to violate the RICO statute, does not meet the
elements clause because no overt act is required, and the
unlawful agreement can be punished even if the substantive
crime is never committed. The government need not establish,
and the jury need not find, that physical force was used,
threatened or attempted by any coconspirator. See, e.g.,
United States v. Davis, 903 F.3d 483, 484 (5th Cir.
2018), aff'd on merits, vacated as to remedy,
588 U.S. ___, 139 S.Ct. 2319 (June 24, 2019). Furthermore,
the residual clause was recently invalidated when the Supreme
Court held that it was unconstitutionally vague. Id.
Therefore, defendant concludes that racketeering conspiracy
cannot constitute a crime of violence under 18 U.S.C. §
924(c)(3) and Count 32 must be dismissed.
The
government maintains that RICO conspiracy alleged in Count 1
does qualify as a crime of violence under the elements clause
because Count 1 includes “Notice of Acts with Enhanced
Sentencing” that charge Arnold with multiple crimes of
violence. See Sixth Superseding Indictment,
¶¶ 4-11 (Djuan Page murder; Davis/Crawford
attempted murder; Raphael Carter attempted murder; Dvante
Roberts murder; Darrio Roberts attempted murder, Marquis
Wicker attempted murder and Jesse Ritchie attempted murder).
The government acknowledges that RICO conspiracy itself does
not satisfy the elements clause. However, Arnold is charged
with various sentencing enhancements, as part of the charged
RICO conspiracy, that increase the statutory maximum sentence
from twenty years to life imprisonment. The Supreme Court has
held that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Furthermore, the “facts that increase the
prescribed range of penalties to which a criminal defendant
is exposed” are elements of the crime. Id. The
Supreme Court went so far as to say that such facts that
qualify as sentencing enhancements are “the functional
equivalent of an element of a greater offense than the one
covered by the jury's guilty verdict . . . and fit[]
squarely within the usual definition of an
“element” of the offense.” Id. at
494 n.19.
While
the Enhanced Sentencing factors are not considered elements
of the general RICO conspiracy, they are elements of the RICO
conspiracy charged against Arnold because they increase the
statutory maximum penalty to which he is exposed. United
States v. Johnson, 732 F.3d 577, 583 (6th Cir. 2013)
(“Apprendi concluded that any facts that
increase the prescribed range of penalties to which a
criminal defendant is exposed are elements of the
crime.”). The government argues that since the Enhanced
Sentencing factors are elements of the charged RICO
conspiracy in Count 1, they may satisfy the elements clause
of § 924(c)(3)(A) if they fit within the definition of
crime of violence. Here, the Enhanced Sentencing factors
allege that Arnold committed multiple murders and attempted
murders, all of which contain as an element the use,
attempted use or threatened use of force. The
government's theory is that the application of
Apprendi to the definition of crime of violence
under § 924(c)(3)(A) allows for the consideration of the
Sentencing Enhancements and mandates the conclusion that the
charged RICO conspiracy is a crime of violence under the
elements clause.
Appellate
courts have not considered whether RICO conspiracy with
special sentencing factors constitutes a crime of violence
under the elements clause. This is because prior to the
Supreme Court's decision in Davis, RICO
conspiracy was routinely considered a crime of violence under
the residual clause. The government suggests that it would be
prudent to delay a ruling on this issue until appellate
courts have an opportunity to address the argument. This
court agrees and invites the parties to keep the court
informed of developments in the circuit courts.
B.
Counts 5 and 17 - Use of a Firearm in Furtherance of a Crime
of Violence Causing Death
In
counts 5 and 17, Arnold is charged with capital murder for
causing the deaths of D.P. and D.R.-1 by carrying and using a
firearm during and in relation to a crime of violence. The
crime of violence is murder in aid of racketeering, as
charged in counts 4 and 16.
Defendant
argues that for murder in aid of racketeering to be a
predicate for a conviction and death sentence under 18 U.S.C.
§ 924(j), it must meet the definition of crime of
violence set forth in 924(c)(3)(A)'s elements clause. The
racketeering murder counts Arnold is charged with incorporate
Michigan's first-degree murder statute, MCLA §
750.316(1). That statute can be violated in three ways,
including “murder perpetrated by means of poison, lying
in wait, or any other willful, deliberate, and premeditated
killing.” Defendant argues that because poisoning does
not categorically require the degree of violent force
sufficient to constitute a crime of violence under §
924(c)(3), the § 924(j) counts against Arnold must be
dismissed.
The
government counters that VICAR murder is a crime of violence
under the elements clause because murder necessarily has the
use of force as an element. See, e.g., United States v.
Mathis, 932 F.3d 242, 264-65 (4th Cir. 2019) (analyzing
first-degree murder under Virginia law which requires the
“willful, deliberate, and premeditated” killing
of another); United States v. Darden, 346 F.Supp.3d
1096, 1133-34 (M.D. Tenn. 2018). The government recognizes
that courts differ on whether to analyze the general federal
offense or the specific state offense charged in the
indictment, but they all arrive at the same conclusion: that
VICAR murder is a crime of violence. The government suggests
that the correct approach evaluates VICAR predicates by a
generic, federal definition, not by the underlying state
statute. See United States v. Mills, 378 F.Supp.3d
563, 576 (E.D. Mich. 2019).
To
establish a VICAR offense, 18 USC § 1959, the government
must prove four elements: (1) the organization is a RICO
enterprise; (2) the enterprise engaged in racketeering
activity; (3) the defendant committed the alleged crime of
violence in violation of state law; and (4) an animating
purpose of the defendant's action was to gain entrance
to, or maintain or increase this position in, the enterprise.
United States v. Odum, 878 F.3d 508, 516 (6th Cir.
2017). In this case, the third element, crime of violence in
violation of state law, is murder. However, the state law is
not itself an element of the crime and it need not be alleged
in the indictment. Rather, it is sufficient if the jury is
instructed on the underlying state crime. Mills, 378
F.Supp.3d at 576-77 (citing United States v.
Fernandez, 388 F.3d 1199, 1219-20 (9th Cir. 2004));
United States v. Weaver, 2010 WL 1633319, at *3
(S.D. W.Va. April 20, 2010) (“Under VICAR, the
Government must ...