United States v. Simmons

UNITED STATES OF AMERICA v. ROBERT SIMMONS, Defendant.

08-CR-1280 (VEC)

16-CV-2055 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: October 30, 2020

October 29, 2020

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, United States District Judge:

Defendant Robert Simmons, awaiting resentencing after this Court vacated his original sentence on August 29, 2016, see Docket Number 08 Cr. 1280 (VEC),¹ Dkt. 63, moved to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). Notice of Mot., Dkt. 93. Defendant's motion is DENIED. Even assuming arguendo that Defendant's motion is a proper way to challenge his conviction, is timely under Rule 12(b)(3) or its untimeliness excused for good cause under Rule 12(c)(3), and that the indictment on which he was convicted was defective for failing to adequately charge knowledge of his status, Defendant's motion fails because he cannot demonstrate that his conviction on the allegedly defective indictment was plain error or otherwise caused him any prejudice.

BACKGROUND

On November 10, 2008, after receiving a 911 call reporting that an individual had brandished a firearm, New York City police officers conducted a sweep of Defendant Robert Simmons' apartment and recovered a firearm with a loaded magazine. See Mar. 2, 2010 PSR ¶¶7-16. On December 17, 2008, Defendant was charged in a one-count indictment with violating 18 U.S.C. §§ 922(g), 924(e). See Indictment, Dkt. 1. In relevant part, the indictment charged:

From on or about November 5, 2008, up to and including on or about November 10, 2008, in the Southern District of New York, ROBERT SIMMONS, the defendant, unlawfully, willfully, and knowingly, after having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, to wit, a conviction on or about March 17, 1992, in New York State Supreme Court, New York County, for Attempted Robbery in the First Degree, a Class C felony, in violation of New York Penal Law 160.15; a Class D felony, in violation of New York Penal Law 160.10; a conviction on or about June 7, 1988, in New York State Supreme Court, New York County, for Robbery in the Third Degree, a Class D felony, in violation of New York Penal Law 160.05; did possess in and affecting commerce, a loaded firearm, to wit, a Taurus 9mm Luger semi-automatic pistol, and ammunition, to wit, ten rounds of 9mm Luger ammunition, all of which had previously been shipped and transported in interstate and foreign commerce.

On December 11, 2009, Hon. (ret.) Shira A. Scheindlin presided over a bench trial on stipulated facts and found Defendant guilty of violating 18 U.S.C. §§ 922(g), 924(e). At trial, Defendant stipulated that, at the time he possessed the firearm, he "had previously been convicted of three felonies, that is, crimes punishable by a term of imprisonment of more than one year," and further stipulated to having been sentenced to 6 to 12 years' imprisonment for a March 1992 conviction, 3 to 6 years' imprisonment for a June 1988 conviction, and 3 to 6 years' imprisonment for another June 1988 conviction. See Stip., Dkt. 95-1. On April 14, 2010, Judge Scheindlin sentenced Defendant to a mandatory minimum term of imprisonment of 180 months. See Dkt. 38.

Since that time, Defendant's case has not been lacking procedural twists and turns. On March 21, 2016, after the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), Defendant filed a petition under 28 U.S.C. § 2255 challenging his 18 U.S.C. § 924(e) sentencing enhancement on the grounds that he was not an "Armed Career Criminal" under the statute. See Mot., Docket Number 16 Cv. 2055 (VEC), Dkt. 1. With the consent of the Government, seeDkt. 60, on August 29, 2016, this Court vacated Defendant's sentence of 180 months in light of the Supreme Court's decision in Johnson and the Second Circuit's decision in United States v. Jones, 830 F.3d 142 (2d Cir. 2016), vacated,838 F.3d 296 (mem.). Dkt. 63. Also without objection from the Government, Defendant was released from custody pending resentencing. See id.

Between late 2016 and early 2019, this Court stayed and held in abeyance Defendant's resentencing pending the development of Second Circuit case law regarding the interplay between the Armed Career Criminal Act, 18 U.S.C. § 924(e), and robbery convictions under New York law. See Docket Number 16 Cv. 2055 (VEC), Dkt. 19; Dkt. 21; Dkt. 24; Dkt. 26; Dkt. 28; Dkt. 32. In United States v. Pereira-Gomez, the Second Circuit held that a conviction for "[r]obbery and attempted robbery in any degree under New York law" is a conviction for a "crime of violence" under the "force clause" of the Sentencing Guidelines. 903 F.3d 155, 166 (2d Cir. 2018). Thus, a defendant previously convicted of such crimes is subject to enhanced penalties under the Armed Career Criminal Act. See id. After the Supreme Court denied certiorari in Pereira-Gomez, which finally confirmed that Defendant's prior robbery convictions subjected him to enhanced penalties under 18 U.S.C. § 924(e), on April 23, 2019, this Court lifted the stay and ordered Defendant to appear for resentencing. See Dkt. 85.

Before Defendant appeared for resentencing, however, on June 21, 2019, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held that, in a prosecution pursuant to 18 U.S.C. § 922(g), the Government must prove not only that the defendant knew he possessed a firearm but also that he knew he belonged to the relevant category of individuals prohibited from possessing a firearm. Id. at 2194. Upon Defendant's request, the Court adjourned resentencing and granted the parties the opportunity to brief the applicability of Rehaif to Defendant. See Dkt. 91. On September 3, 2019, Defendant moved, pursuant to Rule12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure, to dismiss the indictment. See Notice of Mot. Defendant has remained at liberty pending resentencing since August 2016.

DISCUSSION

I. Procedural Issues

As an initial matter, the Court notes that Defendant must overcome numerous procedural hurdles for the Court to consider his motion on the merits.² The unique posture of Defendant's case — post-trial, post-conviction, pre-resentencing, and over ten years removed from the initial date of conviction — renders the procedural issues particularly complex. The Court writes briefly to address these issues primarily to guide its merits analysis, but the Court also questions whether Defendant would be able to survive this procedural gauntlet. Because, however, Defendant's motion fails regardless of how the procedural issues play out, the Court need not decide them in order to deny Defendant's motion.

A motion alleging a defective indictment must be raised "by pretrial motion if the basis for the motion is then reasonably available." Fed. R. Crim. P. 12(b)(3). Although Defendant did not move pretrial, he asserts that his motion is nevertheless timely under Rule 12(b)(3) because the basis for the motion was not "reasonably available" pretrial. See Def.'s Mem. of Law at 17-19. Alternatively, Defendant argues the Court should consider his untimely motion because hehas shown "good cause" under Rule 12(c)(3). See id. at 18 n.3. Whether the Rehaif issue was "reasonably available" pretrial under Rule 12(b)(3) and whether the change in law caused by Rehaif constitutes "good cause" under Rule 12(c)(3) appear to be issues of first impression in this Circuit.³ At least one other circuit has determined that Rehaif — "[a]n intervening legal decision that overturn[ed] settled law" — constitutes "good cause" for purposes of Rule 12(c)(3). See United States v. Maez, 960 F.3d 949, 956-57 (7th Cir. 2020) (noting that "Rehaif went counter to the settled views of every federal court of appeals on an issue affecting thousands of felon-in-possession prosecutions every year"). In contrast, at least two district courts within this Circuit, in reasonably similar circumstances but different procedural postures, have determined that the Supreme Court's decision in Rehaif did not constitute "good cause" for an untimely motion because "[t]he issue decided in Rehaif was percolating in the courts for years" and was "reasonably available" as a basis for objection at the time of trial. United States v. Bryant, No. 11-CR-765, No. 16-CV-3423, 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020) (considering the issue of good cause in the context of a habeas motion); see also Waring v. United States, No. 17-CR-50, No. 19-CV-7982, 2020 WL 898176, at *2 (S.D.N.Y. Feb. 25, 2020) (citing Bryant for the proposition that the issue had been "percolating in the courts for years").⁴ Outside the Second Circuit, it appears that the significant majority of courts to consider the broader issue ofprocedural default or waiver in the wake of Rehaif have similarly found that Rehaif's decision on the knowledge-of-status requirement does not constitute good cause to justify an otherwise waived or defaulted motion.⁵

Were the Court to determine that the knowledge-of-status issue was "reasonably available" to Defendant at the time of his trial, Defendant's motion to dismiss the indictment would be "untimely." See Fed. R. Crim. P. 12(b)(3), (c)(3). Were the Court to further determine that the change in law articulated in Rehaif did not constitute "good cause" under Rule 12(c)(3), the Court likely could not even consider Defendant's motion, as Rule 12(c)(3) articulates "good cause" as the only basis upon which a court may consider an untimely motion. See id. Second Circuit case law seems fairly clear that under Rule 12, as amended in 2014,⁶ a party's failure toraise a 12(b)(3) issue before trial constitutes a complete waiver of that issue absent a showing of good cause, such that a court cannot exercise discretion to review an untimely 12(b)(3) motion.⁷ See United States v. Martinez, 862 F.3d 223, 234 (2d Cir. 2017) (finding that an untimely argument is excused only where ...