United States v. Arnold

          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 ...