United States v. Brown

MORANDUM OPINION ORDER

SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE

On October 31, 2023, a jury convicted Ronald Donnell Brown ("Defendant") of crimes connected to his drug trafficking business, including conspiracy to commit murder for hire.^[1] Pending before the court is Defendant's Motion for Judgment of Acquittal ("Defendant's Motion for Acquittal") (Docket Entry No. 368). For the reasons stated below, Defendant's Motion for Acquittal will be denied.

I. Background

On November 7, 2018, a grand jury charged Defendant in a twelve-count Superseding Indictment.^[2] Count One alleged that Defendant and codefendant Clyde Williams "did conspire with one

another ... to use . . . facilities of interstate or foreign commerce . . . with the intent that a murder be committed ... as consideration for the receipt of . . . anything of pecuniary value, resulting in the death of Marcus Celestine, in violation of [18 U.S.C. § 1958] ."^[[3]] Count Three alleged that Defendant and codefendant Clyde Williams "did aid and abet each other and did knowingly use, carry, brandish, and discharge a firearm . . . during and in relation to a crime of violence . . . (namely the conspiracy to commit murder for hire of Marcus Celestine, as set forth in Count One. . . .) . "^[4]

During trial the Government made an oral motion to dismiss Counts Eight through Twelve, which the court granted.^[5] At the close of evidence, Defendant orally moved for a judgment of acquittal based on the sufficiency of the evidence as to all remaining counts.^[6] Defendant also argued that Count Three failed because Count One, a conspiracy offense, is not a crime of violence as defined in 18 U.S.C. § 924 (c)(3). The Government opposed the

motion but requested time to research Defendant's objection to Count Three. The court denied the motion but stated that Defendant could reurge it following the jury's verdict.

Counts One through Seven were submitted to the jury.^[7] The jury instructions for Count One stated that the Government had to prove:

First: That the defendant conspired to use or conspired to cause another to use or affect a facility in interstate or foreign commerce

Second: That the defendant did so with the intent that murder be committed; and

Third: That the defendant intended that the murder be committed in exchange for, receipt of, or as consideration of a promise or agreement to pay, anything of pecuniary value, resulting in the death of Marcus Celestine.

Fourth: That but for the defendant's actions, Marcus Celestine would not have died.^[8]

The jury found Defendant guilty of Counts One through Seven. ^[9] The charges and verdicts are summarized below:

Count	Charge	Crime of Violence	Disposition
One	Conspiracy to Commit Murder for Hire 18 U.S.C. § 1958	Guilty
Two	Intentional Killing while Engaged in Drug Trafficking 21 U.S.C. § 848(e) (1) (A)	Guilty

Three	Use, Carry, Brandish, and Discharge a Firearm During and in Relation to a Crime of Violence Causing Death by Murder 18 U.S.C. § 924 (c) and (j)	Count One	Guilty
Four	Use, Carry, Brandish, and Discharge a Firearm During and in Relation to a Crime of Violence Causing Death by Murder 18 U.S.C. § 924 (c) and (j)	Count Two	Guilty
Five	Kidnapping 18 U.S.C. § 1201	Guilty
Six	Use, Carry, Brandish, and Discharge a Firearm During and in Relation to a Crime of Violence 18 U.S.C. § 924(c)	Count Five	Guilty
Seven	Conspiracy to Possess with Intent to Distribute Cocaine 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 846	Guilty
Eight	Attempted Tampering with a Witness 18 U.S.C. § 1512	Dismissed
Nine	Attempted Tampering with a Witness 18 U.S.C. § 1512	Dismissed
Ten	Attempted Tampering with a Witness 18 U.S.C. § 1512	Dismissed
Eleven	Attempted Obstruction of an Official Proceeding 18 U.S.C. § 1512 (c) (2)	Dismissed
Twelve	Solicitation to Commit Murder 18 U.S.C. § 373	Dismissed

Defendant filed the pending Motion for Acquittal on November 10, 2023, and the Government responded on December 12, 2023 .^[10] Defendant reurges his sufficiency of the evidence challenge and his argument that Count Three improperly relies on Count One as a crime of violence.

II. Legal Standard

Federal Rule of Criminal Procedure 29(a) states that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." "In assessing a challenge to the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Pruett, 681 F.3d 232, 238 (5th Cir. 2012) (quoting Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979)). "The credibility of the witnesses and the weight of the evidence is the exclusive province of the jury." United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993).

Defendant's claim that conspiracy to commit murder for hire "is not a crime of violence for purposes of 18 U.S.C. § 924(c)(3) is a pure question of law that can be decided without reference to the trial evidence." See United States v. Cruz-Rivera, Criminal No. 3:15-CR-00486 (JAF), 2015 WL 6394416, at *l (D.P.R. Oct. 21, 2015), aff'd, 904 F.3d 63 (1st Cir. 2018).

III. Analysis

A. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence on all counts. Defendant does not present any arguments or authority regarding what elements the Government failed to prove.

Nevertheless, the court has carefully reviewed the Superseding Indictment, the trial record, and the Jury Instructions. The court concludes that the Government presented sufficient evidence to prove the elements of each count of conviction beyond a reasonable doubt.

B. Whether Count One is a Valid Predicate for Count Three

Count Three charged Defendant with aiding and abetting the use of a firearm during and in relation to Count One.^[11] Section 924(c)(1)(A) authorizes penalties for "any person who, during and in relation to any [federal] crime of violence . . . uses or carries a firearm . . ." (emphasis added). A "crime of violence" is defined as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . 18 U.S.C. § 924(c) (3) (A),^[12]The parties disagree whether Count One (Conspiracy to Commit Murder for Hire - § 1958) meets this definition. If it does not, Count Three would fail as a matter of law.

To determine whether an offense is a crime of violence, courts "must apply a 'categorical approach.'" United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). The categorical approach "requires us to look at the elements of an offense, rather than the specific facts of a case." United States v. Bowens, 907 F.3d 347, 353 n.10 (5th Cir. 2018) (citation omitted). "The only relevant question is 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." Taylor, 142 S.Ct. at 2020.

The Court has clarified that "the use, attempted use, or threatened use of physical force against the person of another" does not include offenses that criminalize reckless, negligent, or accidental uses of force. Borden v. United States, 141 S.Ct. 1817, 1824 (2021) (plurality)^[13]; Leocal v. Ashcroft, 125 S.Ct. 377, 383 (2004).^[14]

The categorical approach ignores the defendant's conduct and focuses on the "least culpable" conduct necessary to commit an offense. United States v. Carrasco-Tercero, 745 F.3d 192, 198 (5th Cir. 2014). But it "is not an invitation to apply legal imagination to the [] offense; there must be a realistic probability, not a theoretical possibility, that the [government] would apply its statute to conduct that falls outside the use-of-force clause." United States v. Burris, 920 F.3d 942, 947 (5th Cir. 2019) (brackets and internal quotation marks omitted), vacated on other grounds, 141 S.Ct. 2781 (2021).

Defendant argues that Count One is not a crime of violence because physical force is not an element of conspiracy offenses, including murder-for-hire conspiracy.^[15] The Government responds that the text of§ 1958 is divisible, containing multiple versions of murder-for-hire conspiracy.^[16] The Government argues that the version it charged is not a normal conspiracy offense because it adds an element-that the conspiracy resulted in a death.^[17] The Government argues that because death is an element, physical force is necessarily an element.^[18]

1. Whether § 1958 Is Divisible

Before applying the categorical approach, "courts first look to the text of the statute at issue to determine if it is 'divisible.'" United States v. Powell, 78 F.4th 203, 206 (5th Cir. 2023). That is because "a single statute may create multiple, distinct crimes, some violent, some non-violent." United States v. Garrett, 24 F.4th 485, 488 (5th Cir. 2022). A criminal statute is "divisible" if it "sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile." Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). But courts must...