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Defendants could be charged with use of firearm during violent crime

Where gang members from rival street gangs who allegedly collaborated to facilitate a murder, several attempted murders, two assaults and other related crimes, they could be charged with using a firearm during a crime of violence because murder and attempted murder qualify has crimes of violence under both their generic definition.

Background

This multi-defendant, multi-count prosecution began on June 11, 2018, when a federal grand jury issued two indictments bringing charges against members of the Rollin 60s Crips street gang, the Milia Bloods street gang and gang associates on violations of the Racketeer Influenced and Corrupt Organizations, or RICO, statute, 18 U.S.C. § 1962, Violent Crimes in Aid of Racketeering, or VICAR, statute, 18 U.S.C. § 1959, and other factually related charges.

The government alleges that members of the Crips and Bloods collaborated to facilitate criminal activities, resulting in three separate shootings in the Danville, Virginia area in the summer of 2016. Specifically, the criminal alleged acts involve the attempted murders of the Philly Boys at North Hills Court on June 15, 2016, which led to the assault and attempted murder of Armonti Womack and Dwight Harris, the attempted murder of Justion Wilson and murder of Christopher Motley at North Hills Court on Aug. 20, 2016, and the attempted murder of Tyliek Conway on Aug. 24, 2016.

Three categories of federal crimes are alleged with respect to each shooting: VICAR murder or attempted murder, VICAR assault with a dangerous weapon and use of a firearm during a VICAR crime, murder, attempted murder and assault with a dangerous weapon.

Since the return of the first superseding indictment, four of the original 12 defendants have entered guilty pleas. The remaining defendants have filed a series of motions to dismiss, challenging counts alleging violation of 18 U.S.C. §§ 924(c), 924G), and 1959. Separately, the government moves to dismiss, without prejudice, the charges for use of a firearm during a VICAR assault with a dangerous weapon.

Analysis

Pursuant to § 924(c), any person who, carries a firearm during a drug trafficking crime or crime of violence, or who possesses a firearm in furtherance of such a crime, is subject to an additional five-year minimum prison sentence in addition to the punishment provided for the underlying crime. A crime of violence is defined by § 924(c)(3)(A) 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. Thus, if the underlying offense can be committed without the use, attempted use, or threatened use of physical force, there can be no separate conviction under §924(c)(1)(A) for using, carrying, brandishing, or discharging a firearm during or in relation to the underlying offense.

Contrary to defendant’s contentions, both VICAR murder and VICAR attempted murder are crimes of violence under §924(c)(3)(A) whether defined generically or as they are set forth under Virginia law. Indeed, five different federal judges in Virginia have previously rejected the same arguments raised by defendants herein, finding that even murder by starvation requires the use of force. In contrast, defendants have not cited, and the court has not located, any cases holding that the crime of murder or attempted murder under Virginia law falls outside the force clause of §924(c)(3)(A).

Defendants have also been charged under 18 U.S.C. § 1959(a) with VICAR assault with a deadly weapon committed in violation of Va. Code § 18.2-282, Virginia’s misdemeanor brandishing statute. However, because the Virginia brandishing statute makes it unlawful to engage in a display of a firearm in a manner so as to reasonably induce fear in another, and does not require proof of an intent to threaten or cause harm to another, it is broader than, and does not correspond in substantial part to, generic assault. As such, Va. Code § 18.2-282 cannot serve as a VICAR predicate.

Government’s motion to dismiss granted, defendants’ motion to dismiss granted in part and denied in part.

United States v. Davis, Case No. 4:18-cr-11, July 22, 2019. WDVA at Danville (Urbanski). VLW 019-3-355. 18 pp.

VLW 019-3-355

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