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United States v. Gray

United States District Court, D. Arizona

August 25, 2017

United States of America, Plaintiff,
v.
Kyle Filbert Gray (001) Devan Edward Leonard (002), Defendants.

          ORDER

          DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE.

         Defendants 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 Defendants' motions.

         I. Background.

         The 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, [1] and Begay committed various criminal acts while associated with the RICO conspiracy. Id. A jury trial is scheduled for January 23, 2018. Doc. 177.

         II. Motion to Dismiss Counts 9 and 10 (Doc. 225).

         Count 9 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."

         "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 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). Part (A) of this definition is commonly referred to as the "force clause.'" Part (B) is known as the "residual clause."

         Defendants 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.

         A. Force Clause.

         To 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.

         1. Can a Crime of Violence Be Committed Recklessly?

         Defendants 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 10-11.

         Before 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. 2005)).

         The 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." Id.

         Cases 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. at 2279-80).

         Whatever 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.

         What is 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. 1996).

         In 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).

         2. Use of Physical Force.

         Defendants 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.

         First, 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.

         In 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 applications." Id.

         The 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 motion.

         Second, 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.

         Third, 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.

         For 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.

         B. Residual Clause.

         Relying 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.

         III. Cell-Site Location Information and Expert Testimony (Doc. 229).

         Defendant 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 at 4-7.

         Section 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 4-7.

         The 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.

         To 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).

         In 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 742-45.

         Contrary 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.

         Defendants 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.

         The 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.

         Even if 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).

         When 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.

         IV. Notice of Enhanced Sentencing and Bill of Particulars (Doc. 234).

         In the 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 ...

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