United States v. Amador-Rios

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UNITED STATES OF AMERICA, Plaintiff, v. MELVI AMADOR-RIOS, SANTOS AMADOR-RIOS, YAN CARLOS RAMIREZ, ANTONIO SALVADOR, JOSUE LEIVA, and LUIS RIVAS, Defendants.

No. 18-CR-398 (RPK)

United States District Court, E.D. New York

March 6, 2023

MEMORANDUM AND ORDER

RACHEL P. KOVNER, United States District Judge

Defendants Melvi Amador-Rios, Josue Leiva, and Luis Rivas are charged with various crimes relating to their alleged participation in La Mara Salvatrucha, commonly known as “MS-13.” They seek to dismiss several counts that charge using, carrying, or possessing firearms in connection with, or in furtherance of, crimes of violence. See 18 U.S.C. § 924(c). They argue that the alleged crimes of violence serving as predicate offenses for those counts-racketeering, violent crimes in aid of racketeering and Hobbs Act robbery-are not actually crimes of violence under 18 U.S.C. § 924(c)(3). For the reasons explained below, the motion is denied.

BACKGROUND

The defendants are charged in eighteen counts with various offenses relating to their alleged participation in the MS-13 gang. See Third Superseding Indictment (“Indictment”) (Dkt. #60).

As relevant to this motion, each defendant is charged in Count One with racketeering. Id. at ¶ 9. As racketeering acts, the indictment alleges that all defendants committed murder, in violation of New York Penal Law §§ 125.25(1) and 20.00; conspiracy to murder, in violation of New York Penal Law §§ 125.25(1) and 105.15; and Hobbs Act robbery, in violation of 18 U.S.C §§ 1951(a) and 2. Id. at ¶¶ 10-21.

The indictment also charges Amador-Rios with the additional racketeering act of attempted murder, in violation of New York Penal Law §§ 125.25(1), 110.00, and 20.00. Id. at ¶ 12. In Count Two, each of the moving defendants is charged with using, carrying, or possessing a firearm in connection with, or in furtherance of, the crime of violence charged in Count One, in violation of 18 U.S.C § 924(c). Id. at ¶ 22.

Count Six is a Section 924(c) count predicated on violations of the violent crimes in aid of racketeering (“VICAR”) statute, 18 U.S.C. § 1959. Amador-Rios is charged in Count Four with violating the VICAR statute through an assault with a deadly weapon, in violation of New York Penal Law §§ 120.05(2) and 20.00, and an assault resulting in serious bodily injury, in violation of New York Penal Law §§ 120.05(1) and 20.00. Id. at ¶ 27. Amador-Rios is also charged in Count Five with violating the VICAR statute through an attempted murder, in violation of New York Penal Law §§ 125.25(1), 110.00, and 20.00. Id. at ¶ 29. Count Six then charges Amador-Rios with using, carrying, or possessing a firearm in connection with, or in furtherance of the crimes of violence in Counts Four and Five, in violation of 18 U.S.C. § 924(c). Id. at ¶ 30.

All three defendants are also charged with using, carrying, or possessing firearms in connection with, or in furtherance of Hobbs Act robbery. See id. at ¶¶ 32 (Count Eight as to Amador-Rios and Rivas), 42 (Count Fourteen as to Amador-Rios and Leiva), 44, 46 (Counts Sixteen and Eighteen as to Amador-Rios).

Amador-Rios has moved to dismiss the Section 924(c) charges for which the alleged underlying crime of violence is racketeering (Count Two), assault in aid of racketeering and attempted murder in aid of racketeering (Count Six), and Hobbs Act robbery (Counts Eight, Fourteen, Sixteen and Eighteen). Mot. to Dismiss (Dkt. #157). Leiva and Rivas join the motion insofar as it relates to counts with which they are charged. See Letter Mot. to Dismiss Counts Two and Eight 1 (Dkt. #160); Mot. for Joinder 1 (Dkt. #162).

DISCUSSION

Section 924(c) makes it a crime for any person, “during and in relation to any crime of violence” to “use[] or carr[y] a firearm, or . . . in furtherance of any such crime possess[] a firearm.” 18 U.S.C. § 924(c)(1)(A). A crime of violence is a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). The defendants challenge whether the predicate offenses underlying the Section 924(c) counts in this case are crimes of violence. To answer that question, courts apply a “categorical approach,” asking “whether the federal felony at issue always requires the government to prove-beyond a reasonable doubt, as an element of its case-the use, attempted use, or threatened use of force.” United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). When a single statute sets out “multiple alternative elements,” courts use the “modified categorical approach,” looking to the indictment or a limited class of other documents to determine which of the multiple offenses set forth in the statute is the one with which the defendant was charged. Mathis v. United States, 579 U.S. 500, 505-06 (2016). Applying those methodologies, the challenged predicate offenses constitute crimes of violence. Accordingly, the motion is denied.

I. Count Two

Count Two is predicated on a crime of violence. The predicate offense for Count Two is a substantive violation of the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq. The RICO statute provides that “[i]t shall be unlawful for any person employed by or associated with any enterprise . . . to conduct or participate . . . in the conduct of such enterprise's affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). A pattern of racketeering activity requires at least two acts that qualify as “racketeering activity” under the statute. 18 U.S.C. § 1961(5); see id. § 1961(1) (listing offenses that constitute “racketeering activity”). Using the modified categorical approach, United States v. Pastore, 36 F.4th 423, 429 (2d Cir. 2022), the Second Circuit has held that “a substantive RICO violation [is] a crime of violence for the purpose of § 924(c)” if at least one of the underlying acts of racketeering activity is a crime of violence, Laurent, 33 F.4th at 87-88. See United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009). The substantive RICO offense charged in the indictment is a crime of violence under these principles. The charged acts of racketeering activity include murder, Hobbs Act robbery, and (in the case of Amador-Rios only) attempted murder. Indictment ¶¶ 12-13, 18-21. Murder and attempted murder under New York law are crimes of violence. See, e.g., Laurent, 33 F.4th at 89. And as discussed below, see pp. 7-8, infra, so is Hobbs Act robbery. As a result, the substantive RICO offense charged in the indictment is itself a crime of violence.

The defendants' counterargument is foreclosed by Second Circuit precedent. The defendants argue that a substantive RICO violation is never a crime of violence because the offense “can be accomplished by the commission of two predicate acts of racketeering involving a whole range of completely non-violent conduct, i.e., bribery, mail and wire fraud, bank fraud, gambling, money laundering, and [a] host of other specifically enumerated federal fraud and theft offenses.” Mot. to Dismiss 14-15 (internal citations omitted). But the Second Circuit has expressly “rejected the argument . . . that, because a violation of RICO can be predicated on racketeering acts of a nonviolent nature, a substantive RICO violation cannot be a ‘crime of violence.'” Laurent, 33 F.4th at 87; see United States v. Martinez, 991 F.3d 347, 355-57 (2d Cir. 2021); Ivezaj, 568 F.3d at 95-96. The defendants criticize the Second Circuit's holding, see Reply in Supp. of Mot. to Dismiss 8-9 (Dkt. #171), but they offer no reason to conclude that it has been overruled. While they suggest that Taylor “casts substantial doubt” on the use of the modified categorical approach, id. at 5 n.2, Taylor neither addresses that approach nor overrules the Supreme Court cases that have endorsed it. See Taylor, 142 S.Ct. at 2020-26. And the Second Circuit has employed the modified categorical approach in cases that were decided after Taylor. See, e.g., Singh v. Garland, 58 F.4th 34, 36 (2d Cir. 2022); United States v. Ragonese, 47 F.4th 106, 110-11 (2d Cir. 2022); Sahin v. Garland, No. 21-6391, 2022 WL 17825539, at *1 (2d Cir. Dec. 21, 2022). Accordingly, the motion to dismiss is denied with respect to Count Two.

II. Count Six

The motion to dismiss is also denied with respect to Count Six. The predicate offenses for the Section 924(c) charge in Count Six are two violations of the VICAR statute: an assault in aid of racketeering, based on an assault in violation of New York Penal Law § 120.05(1) and (2), and an attempted murder in aid of racketeering, based on a violation of New York Penal Law §§ 125.25(1), 110.00, and 20.00. Indictment ¶¶ 26-27. Using the modified categorical approach, the Second Circuit has held that “a substantive VICAR offense is a crime of violence when predicated on at least one violent crime in aid of racketeering act[].” Pastore, 36 F.4th at 429 (brackets omitted) (quoting Laurent, 33 F.4th at 88).

Defendants contend that one of the predicate offenses for Count Six-the assault-in-aid-of-racketeering charge-is not in fact a crime of violence. But Count Six would survive even if defendants were correct, because the other predicate offense, attempted murder in aid of racketeering, is a crime of violence. See, e.g., United States v. Minaya, 841 Fed.Appx. 301, 30305 (2d Cir. Jan. 22, 2021); Mayes v United States, No. 12-CR-385(2) (ARR), 2021 WL 3111906, at *7 (E.D.N.Y. July 21, 2021) (collecting cases). In any event, the assault-in-aid-of-racketeering charge is a valid predicate, because assault under Sections 120.05(1) and (2) of the New York Penal Law is a crime of violence. See, e.g., Thompson v. Garland, 994 F.3d 109, 111 (2d Cir. 2021) (holding that “a conviction under ...