United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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). 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.
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.
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.
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
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.
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):
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
(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).
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.
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).
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
Conspiracy to Impede and Injure a Federal Officer, 18 U.S.C.
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
(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 § ...