United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
Kyle Gray and Devan Leonard, along with others, are charged
in a Second Superseding Indictment with conspiracy and other
offenses under the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1961,
etseq. Doc. 131. Gray has filed a motion to dismiss
Counts 9 and 10 (Doc. 225); a motion to suppress cell-site
location information and derivative cell phone expert
testimony (Doc. 229); a motion to dismiss the
indictment's notice of enhanced sentencing, or, in the
alternative, for a bill of particulars (Doc. 234); a motion
to dismiss Count 1, or, in the alternative, to strike state
racketeering predicates (Doc. 242); a motion to sever trial
on Count 12 (Doc. 243); and a motion to dismiss Count 1 as
unconstitutional (Doc. 248). Leonard has moved to suppress
physical evidence. Doc. 236. Leonard has also joined
Gray's motion to dismiss Counts 9 and 10 (Doc. 237);
motion to dismiss the indictment's notice of enhanced
sentencing (Doc. 238); motion to suppress cell-site location
information (Doc. 239); and motion to dismiss Count 1, or, in
the alternative, to strike state racketeering predicates
(Doc. 245). The motions are fully briefed, and the Court held
an evidentiary hearing and heard oral argument on August 18,
2017. For the reasons stated below, the Court will deny
Second Superseding Indictment brings charges against
Defendants Gray and Leonard, and also against Randall
Franklin Begay, Lucille Jean Leonard, and Uriah Thomas Shay,
each of whom is alleged to be an enrolled member of the
Navajo Nation, a federally recognized tribe. Doc. 131. Count
1 alleges that all Defendants participated in a RICO
conspiracy through their association with the Red Skin Kingz
("RSK"), an allegedly violent street gang.
Id. The indictment's 18 remaining counts charge
that Gray, Leonard,  and Begay committed various criminal acts
while associated with the RICO conspiracy. Id. A
jury trial is scheduled for January 23, 2018. Doc. 177.
Motion to Dismiss Counts 9 and 10 (Doc.
alleges that Gray and Leonard violated 18 U.S.C. §
924(j) when they committed the second-degree murder of T.S.
as charged in Count 8. Doc. 131 at 17. Section 924(j) applies
when a defendant causes death in the course of violating 18
U.S.C. § 924(c), which in turn applies when a firearm is
used in a "crime of violence." Count 10 alleges
that Gray and Leonard directly violated 18 U.S.C. §
924(c) - specifically § 924(c)(1)(A)(iii) - by knowingly
using, carrying, and discharging a firearm during the
"crime of violence" charged in Count 8.
Id. Thus, Counts 9 and 10 each depend upon the
second-degree murder charged in Count 8 being a "crime
of violence" is defined in § 924(c)(3):
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
(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). Part (A) of this definition is
commonly referred to as the "force clause.'"
Part (B) is known as the "residual clause."
argue that the second-degree murder charged in Count 8 - an
alleged violation of 18 U.S.C. § 1111 - is not a crime
of violence within either clause of this definition, and
therefore cannot form the basis for the charges in Counts 9
and 10. They ask the Court to dismiss those counts.
determine whether a crime qualifies as a crime of violence,
courts in the Ninth Circuit use a categorical approach.
See United States v. Calvillo-Palacios, 860 F.3d
1285, 1288 (9th Cir. 2017). In this case, the categorical
approach requires the Court to decide whether the full range
of conduct proscribed by the second-degree murder statute can
be categorized as a crime of violence. If some conduct
covered by the statute does not fit the definition of a crime
of violence, then conviction under the statute is not for a
crime of violence.
Can a Crime of Violence Be Committed Recklessly?
cite Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th
Cir. 2006) (en banc), for the proposition that a crime of
violence "must involve the intentional use of
force against the person or property of another."
Id. at 1132 (emphasis added); Doc. 225 at 7-8.
Because one can commit second-degree murder with a mens
rea of recklessness, Defendants argue that the crime can
be committed without an intentional use of force and
therefore is not a categorical crime of violence. Doc. 225 at
the decision in Fernandez-Ruiz, it was "well
established in this circuit that crimes involving the
reckless use of force could be crimes of violence[, ]"
based on the conclusion that "recklessness 'requires
conscious disregard of a risk of a harm that the defendant is
aware of" Fernandez-Ruiz, 466 F.3d at 1126
(quoting United States v. Trinidad-Aquino, 259 F.3d
1140, 1146 (9th Cir. 2001)). But after the Supreme
Court's decision in Leocal v. Ashcroft, 543 U.S.
1 (2004), the Ninth Circuit reversed direction in
Fernandez-Ruiz. 466 F.3d at 1127-29. In
Leocal, the Supreme Court held that the negligent or
accidental use of force is not a crime of violence.
Leocal, 543 U.S. at 11-12. Although
Fernandez-Ruiz recognized that Leocal
reserved the question of whether the reckless use of force is
a crime of violence, 466 F.3d at 1127, the Ninth Circuit
concurred with decisions from the Third and Fourth Circuits
that the "reasoning of Leocal. . . extends to
crimes involving the reckless use of force."
Id. at 1127-29 (citing Oyebanji v.
Gonzales, 418 F.3d 260 (3d Cir. 2005); Popal v.
Gonzales, 416 F.3d 249 (3d Cir. 2005); Tran v.
Gonzales, 414 F.3d 464 (3d Cir. 2005);
Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir.
Ninth Circuit found the Third Circuit's opinion in
Oyebanji particularly persuasive. Id. at
1129. Oyebanji addressed a conviction for vehicular
homicide under New Jersey law. Id. Oyebanji
concluded that "even though New Jersey's definition
of recklessness involved conscious disregard of a substantial
and unjustifiable risk, the reckless use of force was not
sufficiently 'intentional' to prevent an offense from
being accidental." Id. Applying this reasoning,
the Ninth Circuit in Fernandez-Ruiz held that the
petitioner's misdemeanor domestic violence conviction was
not a categorical crime of violence under 18 U.S.C. §
16(a). Id. at 1132. The Ninth Circuit held that
"[i]n light of Leocal, we expressly overrule
our cases holding that crimes of violence under 18 U.S.C.
§ 16 may include offenses committed through the
reckless, or grossly negligent, use of force."
decided after Fernandez-Ruiz have restated its
position on crimes of violence. See Covarrubias Teposte
v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011)
("The effect of our holdings is that in order to be a
predicate offense under either 18 U.S.C. § 16 approach,
the underlying offense must require proof of an
intentional use of force or a substantial risk that
force will be intentionally used during its
commission." (citation omitted; emphasis in original));
see also United States v. Dixon, 805 F.3d 1193, 1197
(9th Cir. 2015) (considering whether robbery was a
"violent felony" for purposes of 18 U.S.C. §
924(e)(2)(B), the Ninth Circuit interpreted Leocal
to require the use of force to be "intentional, not just
reckless or negligent"). The Ninth Circuit has also
acknowledged, however, that the reasoning of
Fernandez-Ruiz now rests on shaky ground. Following
the Supreme Court's decision in Voisine v. United
States, 136 S.Ct. 2272 (2016), the Ninth Circuit
acknowledged that Voisine suggests that
"reckless conduct indeed can constitute a crime of
violence." United States v. Benally, 843 F.3d
350, 354 (9th Cir. 2016) (citing Voisine, 136 S.Ct.
the eventual outcome of this ongoing issue, the Court
concludes that Counts 9 and 10 are not controlled by
Fernandez-Ruiz because second-degree murder under 18
U.S.C. § 1111 cannot be based on mere recklessness. A
conviction under § 1111 requires, at the least, that a
defendant act "recklessly with extreme disregard for
human life.'" See Model Criminal Jury
Instruction 8.108 (9th Cir. June 2017) (emphasis added). This
higher standard of recklessness "require[s] a finding of
extreme recklessness evincing disregard for human life, not
simple recklessness." United States v.
Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010);
see also United States v. Wilson, 221 F.App'x
551, 553 (9th Cir. 2007) (unpublished) (noting distinction
"between mere recklessness and recklessness with extreme
disregard for human life"); United States v.
Lesina, 833 F.2d 156, 159 (9th Cir. 1987)
("disregard for human life becomes more callous, wanton
or reckless, and more probative of malice aforethought, as it
approaches a mental state comparable to deliberation and
intent"); United States v. Celestine, 510 F.2d
457, 459 (9th Cir. 1975) ("Malice aforethought. . .
embraces the state of mind with which one intentionally
commits a wrongful act without legal justification or excuse.
It may be inferred from circumstances which show 'a
wanton and depraved spirit, a mind bent on evil mischief
without regard to its consequences.'" (citation
omitted)). This heightened standard differs from the mere
recklessness found incapable of supporting a crime of
violence in Fernandez-Ruiz.
more, the Ninth Circuit has not applied the rule of
Fernandez-Ruiz to second-degree murder. Since
Fernandez-Ruiz was decided in 2006, the Ninth
Circuit has held that second-degree murder is a crime of
violence. See, e.g., United States v. J.J., 704 F.3d
1219, 1222 (9th Cir. 2013) ("In this case, there is no
question that. . . second-degree murder, if committed by an
adult, would be a felony crime of violence.");
United States v. Begay, 567 F.3d 540, 552 (9th Cir.
2009), overruled on other grounds, 673 F.3d 1038
(9th Cir. 2011) ("Both first- and second-degree murder
constitute crimes of violence."). The Ninth Circuit has
also upheld convictions for second-degree murder under §
1111 and corresponding convictions under § 924(c)(1)(A).
See Wilson, 221 F.App'x at 552; United
States v. Houser, 130 F.3d 867, 868 (9th Cir. 1997);
United States v. Andrews, 75 F.3d 552, 553 (9th Cir.
light of the Ninth Circuit's holding that second-degree
murder is a crime of violence, and the fact that the Court of
Appeals has not applied Fernandez-Ruiz to
second-degree murder, the Court cannot accept Defendants'
argument. Second-degree murder is a crime of violence for the
purposes of § 924(c).
Use of Physical Force.
also contend that second-degree murder is not a crime of
violence because it can be committed without physical force.
Specifically, Defendants rely on United States v.
Torres-Miguel, 701 F.3d 165 (4th Cir. 2012), and similar
cases to claim that a crime of violence must include the use
or threatened use of force, not simply actions that result in
death. Doc. 225 at 11-13. Defendants contend "the
unlawful killing of another could be accomplished in many
ways that would not require force, such as: leaving someone
in a large body of water to drown; starving a child or
vulnerable adult; infecting someone with a deadly virus; or
setting someone on fire." Id. at 12. For three
reasons, the Court does not agree.
after Torres-Miguel was decided by the Fourth
Circuit, the Supreme Court held that "physical
force" can be direct or indirect. United States v.
Castleman, 134 S.Ct. 1405, 1414-15 (2014). The Supreme
Court explained that poisoning constitutes a use of force
because the perpetrator "employ[s] poison knowingly as a
device to cause physical harm." Id. at 1415.
Each of Defendants' examples - using water to cause
drowning, withholding food to cause starvation, infecting
with a virus to cause death, and using fire to cause death -
also employs a device to cause physical harm.
light of Castleman, the Fourth Circuit recognized
that Torres-Miguel - the case on which Defendants
rely - was no longer good law. See United States v.
Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017)
(acknowledging that Castleman abrogates
Torres-MiguePs finding that the use of poison would
not constitute the use of physical force); United States
v. Reid, 861 F.3d 523, 529 (4th Cir. 2017) ("by
applying the combination of Johnson and
Castleman, we conclude that ACCA's phrase
'use of physical force' includes force applied
directly or indirectly"). Torres-MiguePs
reasoning "can no longer support an argument that the
phrase 'use of physical force' excludes indirect
Fourth Circuit also held that second-degree murder "is a
crime of violence under the force clause because unlawfully
killing another human being requires the use of force
'capable of causing physical pain or injury to another
person.'" In re Irby, 858 F.3d 231, 236
(4th Cir. 2017). "Common sense dictates that murder is
categorically a crime of violence under the force
clause." Id. at 237. Defendants' appeal to
Fourth Circuit case law, therefore, does not help their
the Ninth Circuit has rejected the rationale in
Torres-Miguel. In United States v.
Calvillo-Palacios, 860 F.3d 1285 (9th Cir. 2017), and
Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016),
the Ninth Circuit expressly rejected the
Torres-Miguel line of cases as inconsistent with the
Supreme Court's decision in Castleman. See
Calvillo-Palacios, 860 F.3d at 1290-91;
Hernandez, 831 F.3d at 1131. In doing so, the Ninth
Circuit cited and impliedly rejected each of the cases on
which Defendants rely to support their argument.
Calvillo-Palacios, 860 F.3d at 1290-91;
Hernandez, 831 F.3d at 1131.
as already noted, the Ninth Circuit has held that
second-degree murder constitutes a crime of violence.
See, e.g., J.J., 704 F.3d at 1222; Begay,
567 F.3d at 552.
these reasons, the Court rejects Defendants' argument
that second-degree murder is not a crime of violence for the
purposes of § 924(c)(3)(A) because it could be committed
without using physical force.
on the Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), Defendants argue that the
residual clause is unconstitutionally vague. Doc. 225 at 4.
At oral argument, the government stated that if Counts 9 and
10 can proceed under the force clause of § 924(c)(3)(A)
- which the Court does, for reasons explained above - the
government will not rely on the residual clause of §
924(c)(3)(B) at trial. The Court therefore need not decide
whether the residual clause is constitutional.
Cell-Site Location Information and Expert Testimony (Doc.
Gray, joined by Defendant Leonard, argues that the Court must
suppress cell-site location information ("CSLI")
and derivative cell phone expert testimony. Docs. 229, 239.
On October 27, 2015, the government filed two sealed
applications for orders, pursuant to 18 U.S.C. §
2703(d), that Cellular One turn over records associated with
two telephones allegedly used by Gray and Leonard. Docs. 229
at 2, 251 at 2. On the same day, a United States Magistrate
Judge issued the orders and found "reasonable grounds to
believe that the records or other information sought are
relevant and material to an ongoing criminal
investigation." Doc. 251 at 2. Using these orders, the
FBI obtained and analyzed subscriber information, call detail
records, and CSLI associated with the two telephones for the
time period of January 1, 2014, to April 30, 2015. Docs. 229
at 2, 251 at 3. This analysis included focused efforts to
determine the location and movements of Defendants on the
night of the alleged murder of T.S. Doc. 229 at 3-4.
Defendants argue that the government's collection and
analysis of the CSLI constituted a "search" within
the meaning of the Fourth Amendment, and that a warrant
supported by probable cause was therefore required. Doc. 229
2703(d) does not require a finding of probable cause, only a
lesser finding of "reasonable grounds to believe that...
the records or other information sought are relevant and
material to an ongoing criminal investigation." 18
U.S.C. § 2703(d). Defendants argue that the Fourth
Amendment requires more and that the government's
collection and analysis of the CSLI was illegal. Doc. 229 at
government notes that neither the Supreme Court nor the Ninth
Circuit have addressed this issue, but argues that the vast
majority of federal courts have found that the collection of
CSLI pursuant to 18 U.S.C. § 2703(d) is not a search
under the Fourth Amendment. Doc. 251 at 4-5. The government
also contends that the "third-party doctrine"
deprives Defendants of any privacy interest in the records.
Doc. 251 at 4.
invoke the protections of the Fourth Amendment, a defendant
must have a legitimate expectation of privacy in the place
searched. Rakas v. Illinois, 439 U.S. 128, 143
(1978). The "legitimate expectation of privacy"
inquiry has two components. See Smith v. Maryland,
442 U.S. 735, 740-41 (1979); Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring); United
States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir.
2007). First, the court must consider whether the defendant
has exhibited an actual, subjective expectation of privacy.
Smith, 442 U.S. at 740. Second, the court must
determine whether the defendant's subjective expectation
of privacy is "one that society is prepared to recognize
as reasonable." Id. at 740-41 (internal
quotation marks and citation omitted). A defendant bears the
burden of showing a reasonable expectation of privacy.
United States v. Caymen, 404 F.3d 1196, 1199 (9th
Cir. 2005) (citing Rakas, 439 U.S. at 131); see
United States v. Johnson, 584 F.3d 995, 998 (10th Cir.
2009). Whether a defendant's expectation of privacy is
objectively reasonable is a question of law. United
States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000).
United States v. Miller, 425 U.S. 435 (1976), and
Smith v. Maryland, 442 U.S. 735 (1979), the Supreme
Court recognized the "third-party doctrine." That
doctrine holds that "a person has no legitimate
expectation of privacy in information he voluntarily turns
over to third parties." Id. at 743-44; see
also Miller, 425 U.S. at 442-44. In Miller, the
Supreme Court found that a bank customer had no reasonable
expectation of privacy in financial information he
voluntarily conveyed to his bank for use in the ordinary
course of its business. Id. at 442-43. In
Smith, the Supreme Court held that the defendant did
not have a reasonable expectation of privacy in numbers he
dialed from his telephone because he voluntarily conveyed
that information to the telephone company. 442 U.S. at
to Defendants' arguments, federal courts consistently
rely on Miller and Smith to hold that
defendants have no reasonable expectation of privacy in
historical cell-site data because the defendants voluntarily
convey their location information to the cell phone company
when they use a cell phone and transmit their signal to a
nearby cell tower, and because the companies maintain that
information in the ordinary course of business. See
United States v. Thompson, - F.3d -, No. 15-3313, 2017
WL 3389368, at *9 (10th Cir. Aug. 8, 2017); United States
v. Stimler, 864 F.3d 253, 264 n.33 (3d Cir. 2017);
United States v. Graham, 824 F.3d 421, 427-28 (4th
Cir. 2016) (en banc); United States v. Carpenter,
819 F.3d 880, 887-90 (6th Cir. 2016), cert, granted,
137 S.Ct. 2211 (2017); United States v. Davis, 785
F.3d 498, 511-13 (11th Cir. 2015) (en banc); In re
Application of United States for Historical Cell Site
Data, 724 F.3d 600, 615 (5th Cir. 2013); United
States v. Ruby, No. 12CR1073 WQH, 2013 WL 544888, at *6
(S.D. Cal. Feb. 12, 2013); United States v. Madison,
No. 11-60285-CR, 2012 WL 3095357, at *7-9 (S.D. Fla. July 30,
2012); United States v. Graham, 846 F.Supp.2d 384,
397-403 (D. Md. 2012). The government emphasizes that
"every Circuit that has considered this issue has
rejected the defendants' argument and concluded the
United States may obtain historical cell-site information via
a 2703(d) order." Doc. 251 at 4.
rely heavily on Judge Koh's thoughtful opinion in In
re Application for Telephone Info. Needed for a Criminal
Investigation, 119 F.Supp.3d 1011 (N.D. Cal. 2015). But
that decision admittedly is in a small minority of district
court cases that have found collection of CSLI subject to a
probable cause requirement, and the Court finds the reasoning
of the Fourth Circuit in Graham, 824 F.3d at 426-38,
and the Sixth Circuit in Carpenter, 819 F.3d at
886-91, to be more persuasive on this issue.
Court concludes that the third-party doctrine applies to the
CSLI obtained by the FBI pursuant to the § 2703(d)
orders. Defendants had no reasonable expectation of privacy
in data they voluntarily conveyed to Cellular One, and
probable cause was not required.
the Court were to conclude that a Fourth Amendment violation
occurred in this case, Defendants' motion would be
denied. The fact that a Fourth Amendment violation occurs
"does not necessarily mean that the exclusionary rule
applies." Herring v. United States, 555 U.S.
135, 140 (2009). One of the "important principles that
constrain[s] application of the exclusionary rule" is
the good faith exception. Id. at 140. In United
States v. Leon, 468 U.S. 897 (1984), the Supreme Court
held that when an officer acts "in the objectively
reasonable belief that [his] conduct did not violate the
Fourth Amendment, " evidence should not be suppressed.
Id. at 918-22. The good faith exception applies
where law enforcement officers reasonably rely on a search
warrant issued by a neutral magistrate, id. at
920-21, on a statute later held unconstitutional,
Illinois v. Krull, 480 U.S. 340, 349-50 (1987), or
on binding appellate precedent later overruled, Davis v.
United States, 564 U.S. 229, 241 (2011).
the FBI obtained the CSLI in this case, they followed the
procedures required by § 2703(d) and obtained the
approval of a United States Magistrate Judge. The vast
majority of federal cases, including cases in this district,
see United States v. Rigmaiden, No. CR
08-814-PHX-DGC, 2013 WL 1932800, at *9-14 (D. Ariz. May 8,
2013), have held those statutory procedures constitutional.
Law enforcement relied in good faith on the validity of the
law they were following. The Court cannot agree with
Defendants' argument that the good faith exception would
not apply because two judges The Supreme Court has granted a
writ of certiorari in Carpenter, 137 S.Ct. 2211
(2017), but a decision is not likely for six or more months.
in the Northern District of California had adopted a clearly
minority view of the validity of § 2703(d). Thus, even
if the Court were to conclude that obtaining CSLI is a Fourth
Amendment search that requires a finding of probable cause,
the Court would deny Defendants' motion to exclude the
CSLI and related expert testimony.
Notice of Enhanced Sentencing and Bill of Particulars (Doc.
Second Superseding Indictment, the government provides notice
of its intent to seek life imprisonment of Gray and Leonard
for the RICO conspiracy alleged in Count 1. Doc. 131 at 15.
This notice is based on 18 U.S.C. § 1963(a), which
provides: "Whoever violates any provision of section
1962 of this chapter shall be fined under this title or
imprisoned not more than 20 years (or for life if the
violation is based on a racketeering activity for which the
maximum penalty includes life imprisonment).'"
(Emphasis added). The notice alleges that Defendants Gray,
Leonard, and Begay:
joined and remained in the RICO conspiracy charged in Count
One knowing and agreeing that members of the enterprise would
engage in acts involving murder, in violation of Arizona
Revised Statutes Section . . . 13-1105 [the Arizona
first-degree murder statute], to wit: intentionally causing
the death of ...