Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bundy

United States District Court, D. Nevada

February 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIVEN D. BUNDY et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is the Report and Recommendation (ECF No. 1218) entered by Magistrate Judge Peggy A. Leen on December 30, 2016, denying Defendants Peter T. Santilli, Jr.'s (“Santilli's”) Motion to Dismiss Count Three (ECF No. 702) and Ryan W. Payne's (“Payne's”) Motion to Dismiss Counts Three, Six, Nine, and Fifteen (ECF No. 710), in which both Santilli and Payne (collectively, “Defendants”) argued that the Superseding Indictment should be dismissed for failure to allege a crime of violence. Payne timely filed his Objection (ECF No. 1296), to which the Government timely filed a Response (ECF No. 1442).[1] For the reasons stated below, Payne's Objection is sustained in part, overruled in part, and Count Three of the Superseding Indictment is dismissed as to all defendants.

         I. BACKGROUND

         On March 2, 2016, a federal grand jury sitting in the District of Nevada returned a Superseding Indictment charging Santilli, Payne, and seventeen other co-defendants with sixteen counts related to a confrontation on April 12, 2014, with Bureau of Land Management (“BLM”) Officers in Bunkerville, Nevada. (See Superseding Indictment, ECF No. 27). At issue here are Counts Three, Six, Nine, and Fifteen, which all allege “Use and Carry of a Firearm in Relation to a Crime of Violence, Title 18, United States Code, Sections 924(c) and 2.” (Id. 41:10-42:11, 44:8-45:7, 47:7-48:5, 52:19-53:19). The alleged predicate crimes of violence are the counts directly preceding each of these counts.

         In the Motions to Dismiss, Santilli seeks to dismiss Count Three, and Payne seeks to dismiss Counts Three, Six, Nine, and Fifteen because “[a]s a matter of law . . . none of the four underlying offenses alleged in Counts 3, 6, 9, and 15 are categorically ‘crimes of violence.'” (Payne Mot. to Dismiss 3:19-20, ECF No. 710); (see also Santilli Mot. to Dismiss 3:26-28, ECF No. 702) (“Count 3 alleging a violation of 18 U.S.C. 924c [sic] does not reach the legal definition of a ‘crime of violence' and should be dismissed.”). In her Report and Recommendation, Judge Leen found all four counts to categorically qualify as crimes of violence and recommended denial of the Motion. (R. & R. 28:17-42:13, ECF No. 1218).

         II. LEGAL STANDARD

         A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).

         III. DISCUSSION

         Payne asserts several objections to Judge Leen's Report and Recommendation denying his Motion to Dismiss. (Obj., ECF No. 1296). He argues that the residual clause of Section 924(c) is unconstitutional. (Id. 3:21-12:5). Payne then reasserts his argument from his original motion that each of the “predicate offenses alleged in Counts 3, 6, 9, and 15 are not [categorically] crimes of violence.” (Id. 12:6-22:11). The Court will first describe the applicable law and then consider each predicate offense.

         Defendants are charged under § 924(c)(1), which makes it a crime to knowingly possess, use, brandish, and carry a firearm during and in furtherance of a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(ii). One element of this crime is that the predicate offense is a crime of violence. Section 924(c)(3) provides the definition for “crime of violence” as used in § 924(c)(1):

         For 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). The predicate offense can be a crime of violence under either the Section 924(c)(3)(A), also referred to as the “Force Clause” (or “Elements Clause”), or Section 924(c)(3)(B), also referred to as the “Residual Clause.” See id.; see also United States v. Bell, 158 F.Supp.3d 906, 910 (N.D. Cal. 2016).

         To determine if an offense is a crime of violence under § 924(c)(3), the Ninth Circuit applies the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990). See United States v. Piccolo, 441 F.3d 1084, 1086-87 (9th Cir. 2006) (“In the context of crime of violence determinations under § 924(c), our categorical approach applies regardless of whether we review a current or prior crime.”). In United States v. Amparo, the Ninth Circuit explained:

[T]his circuit has adopted a categorical approach to determining which offenses are included under section 924(c) as “crimes of violence” obviating the need for fact finding by the jury. The jury must find the facts underlying the charged offense . . . but the court determines whether that category of offense is a crime of violence.

68 F.3d 1222, 1225-26 (9th Cir. 1995); see also United States v. Mendez, 992 F.2d 1488, 1490-92 (9th Cir. 1993).

         Under the categorical approach, courts “look only to the statutory definitions-i.e., the elements-of a defendant's [offense], and not to the particular facts underlying [the charge].” Descamps v. United States, 133 S.Ct. 2276, 2283 (2013) (internal quotation marks omitted). A crime “qualifies as a crime of violence . . . if and only if the full range of conduct covered by it falls within the meaning of that term.” Valencia v. Gonzales, 439 F.3d 1046, 1049 (9th Cir. 2006). The court considers whether the elements of the predicate offense criminalizes “a broader swath of conduct” than the conduct covered by § 924(c)'s definition of a crime of violence. Descamps, 133 S.Ct. at 2281. If so, then the predicate offense cannot “qualify as a crime of violence, even if the facts underlying [the particular charge] might satisfy [§ 924(c)'s] definition.” United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014).

         As part of this analysis, the court must determine if the statute is indivisible or divisible. A statute is “indivisible” if it does not contain alternative elements, while statute is “divisible” if it “sets out one or more elements of the offense in the alternative.” Descamps, 133 S.Ct. at 2281. If the statute is indivisible, the analysis ends at the categorical approach. “Under the categorical approach, the crime-of-violence determination ‘function[s] as an on-off switch': An offense qualifies as a crime of violence ‘in all cases or in none.'” Dominguez-Maroyoqui, 748 F.3d at 920 (quoting Descamps, 133 S.Ct. at 2287). However, if the statute is divisible, then the court uses the modified categorical approach, in which the court “may look beyond the statutory elements to ‘the charging paper and jury instructions' used in a case.” Id. at 2283 (citing Taylor v. United States, 495 U.S. 575, 602 (1990)). The court consults this “limited class of documents . . . to determine which alternative formed the basis of the defendant's [offense].” Id. at 2281. The court then determines whether the elements of that alternative constitute conduct covered by § 924(c)'s definition of a crime of violence. See Descamps, 133 S.Ct. at 2281.

         A. Conspiracy to Impede and Injure a Federal Officer, 18 U.S.C. § 372

          The crime of violence referred to in Count Three is the crime charged in Count Two: Conspiracy to Impede and Injure a Federal Officer, 18 U.S.C. § 372. Judge Leen found that § 372 has three elements that the Government must prove:

(1) there was an agreement between two or more persons to commit the crime charged in the indictment (i.e., the object of the conspiracy); (2) the defendant became a member of the conspiracy knowing of its object and intending to help accomplish it; and (3) the object of the conspiracy. See 9th Cir. Model Crim. Jury Instructions, 8.20 “Conspiracy - Elements” (2010 ed.) (modified Dec. 2016); United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008) (holding that a jury must be instructed “on an element of the crime that is the object of the conspiracy”).

(R. & R. 28:27-29:5). She then found § 372 is divisible because it contains alternate objects of the conspiracy. Looking at the Superseding Indictment, Judge Leen determined that the allegations refer to the following two alternative elements: (1) “preventing, ‘by force, intimidation, or threat, ' any officer of the United States from discharging his official duties” and (2) “inducing, ‘by like means, ' any officer of the United States to leave the place where he is required to perform his official duties.” (Id. 29:7-9, 30:7); (see also Superseding Indictment 41:2-5). Judge Leen then found that § 372 did not qualify as a crime of violence under § 924(c)'s Force Clause because “it lacks an overt act as an element of the offense . . . [therefore, ] a defendant could be convicted of conspiracy merely for agreeing to accomplish the object of the conspiracy.” (R. & R. 30:17-31:2). Nevertheless, Judge Leen ultimately found that § 372 qualified as a crime of violence under § ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.