United States v. McCoy

235 F.Supp.3d 427

UNITED STATES of America,

v.Earl MCCOY and Matthew Nix, Defendants.

6:14–CR–06181 EAW

United States District Court, W.D. New York.

Signed January 25, 2017

Robert Marangola, U.S. Attorney's Office, Rochester, NY, for Plaintiff.

Mark D. Hosken, Federal Public Defender, Rochester, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. BACKGROUND

Defendants Earl McCoy ("McCoy") and Matthew Nix ("Nix") (collectively "Defendants"), represented by counsel, both stand accused by way of a 12–count Third Superseding Indictment, returned on January 5, 2017, as follows:

Count 1 : Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951(a) ;

Count 2 : Use of firearms during and in relation to a crime of violence (the Hobbs Act conspiracy as set forth in Count 1), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2;

Count 3 : Attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2;

Count 4 : Use of firearms during and in relation to a crime of violence (the attempted Hobbs Act robbery as set forth in Count 3), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2;

Count 5 : Attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2;

Count 6 : Use of firearms during and in relation to a crime of violence (the attempted Hobbs Act robbery as set forth in Count 5), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2;

Count 7 : Narcotics conspiracy, in violation of 21 U.S.C. § 846 ;

Count 8 : Possession of firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2;

Count 11 : Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and

Count 12 : Use of a firearm during and in relation to a crime of violence (the Hobbs Act robbery set forth in Count 11), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.

(Dkt. 165). In addition, Nix and McCoy are each charged separately, in Counts 9 and 10 respectively, with possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 2. (Id. at 6–7).

A jury trial is presently scheduled to commence in this matter on Friday, February 3, 2017, and, in advance of that trial, numerous motions have been filed by Defendants. The purpose of this Decision and Order is to set forth the Court's resolution¹ of the following relief requested by Defendants: (1) Defendants' renewals of their previously-filed pretrial motions, as set forth in the motion filed by McCoy at Docket 179 and the motion filed by Nix at Docket 180; (2) Defendants' motions to dismiss Counts 5 and 6 of the Third Superseding Indictment on the ground that the charges fail to recite an essential element of the substantive offense necessary for a finding of a Hobbs Act robbery, as set forth in the motion filed by McCoy at Docket 179 and the motion filed by Nix at Docket 180; (3) Defendants' motions to dismiss Count 2 of the Third Superseding Indictment on the ground that a Hobbs Act conspiracy is not a crime of violence, as set forth in the motion filed by Nix at Docket 180 and the motion filed by McCoy at Docket 183; and (4) Defendants' motions for severance, as requested in the motion filed by McCoy at Docket 179 and the motion filed by Nix at Docket 180.² For the reasons set forth below, the relief requested by Defendants is denied.

II. DEFENDANTS' REQUEST FOR RENEWAL OF ALL PRIOR MOTIONS AND FOR DISMISSAL OF COUNTS FIVE AND SIX

McCoy "renews all previously filed motions with respect to this case and reaffirms each and every argument made therein as if fully set forth herein." (Dkt. 179–1 at 3). McCoy's notice of motion seeks "renewal of the motions previously filed ... on February 23, 2016 with respect to the identical courts [sic] contained in the Third Superseding Indictment and ... preserving all issues including the suppression issue raised with respect to the identification of the defendant as they apply to the counts contained in the Third Superseding Indictment." (Dkt. 179 at 1). Likewise, Nix "renews all previously filed motions with respect to this case and reaffirms each and every argument made therein as if fully set forth herein." (Dkt. 180 at 4).

McCoy also moves to dismiss Counts 5 and 6 of the Third Superseding Indictment, renewing an argument he set forth previously in his omnibus motions (Dkt. 69; Dkt. 109) and in his objections (Dkt. 141) to Magistrate Judge Marian W. Payson's Report and Recommendations (Dkt. 136). McCoy once again argues that because the Third Superseding Indictment, like the indictments that came before it, does not expressly state that he acted "knowingly" or "willfully" to obstruct commerce, the Third Superseding Indictment fails to recite an essential element of the substantive offense necessary for a finding of a Hobbs Act robbery, warranting dismissal. (Dkt. 179–1 at 3–4). Nix joins in this argument. (Dkt. 180 at 2).

The renewed motions, as well as the reiterated mens rea -based challenge to the Hobbs Act robbery, are subject to the law of the case doctrine. The law of the case doctrine "holds ‘that when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case,’ unless ‘cogent’ and ‘compelling’ reasons militate otherwise." United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (first quoting United States v. Uccio , 940 F.2d 753, 758 (2d Cir. 1991) ; then quoting United States v. Tenzer , 213 F.3d 34, 39 (2d Cir. 2000) ). Reasons not to adhere to a prior decision include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Id. at 1230 (quoting Tenzer, 213 F.3d at 39 ).

Here, in its Decision and Order, dated November 28, 2016, the Court adopted Magistrate Judge Payson's Report and Recommendation concerning Defendants' pretrial motions in its entirety. (Dkt. 152). Defendants offer no reasons—let alone any "cogent" or "compelling" reason—why the Court should depart from the conclusions that it reached in that November 28, 2016, Decision and Order, and the Court finds none. Thus, with respect to Defendants' renewed pretrial motions and mens rea -based argument, the Court reaches the same conclusions it did in its Decision and Order dated November 28, 2016.

III. DEFENDANTS' REQUEST FOR DISMISSAL OF COUNT 2

Defendants are charged in the Third Superseding Indictment with a number of counts involving the alleged use of firearms during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts 2, 4, 6 and 12). The alleged basis for the crime of violence charged in Count 2 is the Hobbs Act conspiracy in violation of 18 U.S.C. § 1951(a), as charged in Count 1.

Nix moves to dismiss Count 2. (Dkt. 180 at 2–3). Nix argues that "Hobbs Act Conspiracy does not meet the definition of a ‘crime of violence’ as it can be committed even without the use, attempted use, or threated use of physical force against the person or property of another." (Id. at 3).

McCoy raises the same argument. (Dkt. 183–1 at 2).

A. Relevant Statutes and Offenses Charged

Section 924(c)(1)(A)(ii) states, in relevant part, as follows:

[A]ny person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.

18 U.S.C. § 924(c)(1)(A)(ii). The statute sets forth two alternative definitions of a "crime of violence" in 18 U.S.C. § 924(c)(3) :

For the purposes of this subsection the term "crime of violence" means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that 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). Subsection (A) is referred to as the "force clause," while subsection (B) is referred to as the "risk-of-force" clause." United States v. Hill, 832 F.3d 135, 138 (2d Cir. 2016).

The "crime of violence" alleged in Count 2 is Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951(a), involving an alleged conspiracy to commit a robbery of diamonds, watches, money, and drugs. (Dkt. 165 at 1–2). Section 1951(a) punishes a person who:

in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery ... or ... conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section. ...

18 U.S.C. § 1951(a) (emphasis added). Further, 18 U.S.C. § 1951(b)(1) defines "robbery" as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1).

B. Categorical Approach

The question of whether an offense is a "crime of violence" calls for the application of the categorical approach. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; accord Hill, 832 F.3d at 139 ("To determine whether an offense is a crime of violence, courts employ what has come to be known as the ‘categorical approach.’ ").

Under the categorical approach, courts identify the minimum criminal conduct necessary for conviction under a particular statute. In doing so, courts look only to the statutory definitions—i.e. , the elements—of the offense, and not to the particular underlying facts. ... As

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