Petition for Writ of Certiorari — Kirk Lassend, Petitioner v. United States

No. _____

________________________________________________

In the

Supreme Court of the United States

October Term, 2018

_______________________________________________

KIRK LASSEND,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

________________________________________________________

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

______________________________________________________

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

___________________________________________________________

Karen A. Pickett

Pickett Law Offices, P.C.

Counsel of Record

125 High Street, 26th Floor

Boston, MA 02110

(617) 423-0485

Counsel for Kirk Lassend

QUESTIONS PRESENTED

1. Whether This Court Should Grant This Petition To Resolve The Circuit Split As To

Whether A Crime Which Does Not Require The Actual Use Of Violent Force Can

Qualify As A “Violent Felony” Under The ACCA.

2. Whether This Court Should Grant The Petition To Determine Whether Mr. Lassend Can

Be Held To Have Committed A “Violent Felony” When The Armed Robbery Statue

Allows Convictions Based On Use Of Non-Dangerous Weapons And Also Imposes Strict

Accomplice Liability That Does Not Comport With The Purpose Of Imposing An

Enhanced ACCA Sentence.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................................................................. ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF AUTHORITIES ............................................................................................. iv

OPINIONS BELOW ............................................................................................................1

JURISDICTION ..................................................................................................................1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ..........................2

STATEMENT OF CASE ....................................................................................................3

REASONS FOR GRANTING THE PETITION………………………………………… 6

A. This Court Should Grant This Petition To Resolve The Circuit Split As To Whether A Crime

Which Does Not Require The Actual Use Of Violent Force Can Qualify As A “”Violent

Felony” Under The ACCA.… ……………………………….……………………… 6

B. This Court Should Grant The Petition To Determine Whether Mr. Lassend Can Be Held To

Have Committed A “Violent Felony” When The Armed Robbery Statute Allows Convictions

Based On Use Of Non-Dangerous Weapons And Also Imposes Strict Accomplice Liability

That Does Not Comport With the Purpose Of Imposing An Enhanced ACCA

Sentence.……………………………………………………………………………... 11

CONCLUSION…………………………………………………………………………... 15

INDEX TO APPENDICES

Appendix A: Judgment and Opinion of the United States Court of Appeals ....................A

Appendix B: Order on Petition for Rehearing………………………………………….. B

Appendix C: Memorandum and Order of the District Court ............................................. C

iii

TABLE OF AUTHORITIES

Cases

Johnson v. United States, 135 S.Ct. 2521 (2015)………………………………………………3,6

Johnson v. United States, 559 U.S. 133 (2010)…………………………………………….8,10,12

Lassend v. United States, 898 F.3d 115 (1st Cir. 2018)……………………………………..passim

People v. Gage, 687 N.Y.S2d 202 (3rd Dept. 1999)…………………………………………….13

People v. Gladden, 118 Misc.2d 831 (Sup. Ct. 1983)……………………………………………9

People v. Miranda, 612 N.Y.S.2d 65 (App. Div. 1994)………………………………………….9

Rosemund v. United States, 575 U.S. 65 (2014)………………………………………………...14

Shepard v. United States, 544 U.S. 13 (2005)…………………………………………………..14

Stokeling v. United States, 2019 WL 189343 (2019)…………………………………… 7,10,14

United States v. Castleman, 134 S.Ct. 1408 (2014)…………………………………………...9,10

United States v. McNeal, 818 F.3d 141 (4th Cir. 2016)…………………………………….....9,10

United States v. Rice, 813 F.3d 704 (8th Cir. 2016)……………………………...................... 9,10

United States v. Starks, 861 F.3d 306 (1st Cir. 2017)……………………………………… 12,13

United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012)…………………………......….9,10

United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006)…………………………..8,10

United States v. Whindleton, 797 F.3d 105 (2015)…………………………………………… 13

Whyte v. Lynch, 807 F.3d 463 (1st Cir 2015)…………….…………………………………...8-10

Statutes And Rules

28 U.S.C. § 2255………………………………….…………………………………............... 2-3

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

………………………………………………………………… 2

…………………………………………………………………………. 2

iv

18 U.S.C. § 924(e)……………………………………………………………………….. passim

N.Y. P.L. § 160.15(4)………………………………………………………………………….5,11

N.Y. P.L. § 120.05……………………………………………………………………………,, 5,7

Constitutional Provisions

Fifth Amendment to the United States Constitution………………......................................passim

v

No. _____

________________________________________________

In the

Supreme Court of the United States

October Term, 2018

_______________________________________________

KIRK LASSEND,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

________________________________________________________

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

______________________________________________________

Kirk Lassend (“petitioner” or “Mr. Lassend”) respectfully petitions this Court for a writ

of certiorari to review the judgment of the United States Court of Appeals for the First Circuit

that affirmed the judgment of the United States District Court for the District of Massachusetts.

OPINIONS BELOW

The judgment and opinion of the United States Court of Appeals for the First Circuit is

Appendix A to this petition. The order denying Mr. Lassend’s petition for rehearing is attached

hereto at Exhibit B. The memorandum and order of the United States District Court of

Massachusetts denying Mr. Lassend’s 28 U.S.C. § 2255 petition is attached hereto at Exhibit C.

JURISDICTION

The Judgment of the United States Court of Appeals for the First Circuit was entered on

August 2, 2018, and Mr. Lassend’s petition for rehearing was denied on October 26, 2018. This

1

Court has jurisdiction under 28 U.S.C. § 1254(1). The District Court had jurisdiction pursuant to

28 U.S.C. § 2255, and the Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment to the United States Constitution: "No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,

except in cases arising in the land or naval forces, or in the militia, when in actual service in time

of war or public danger; nor shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation."

18 U.S.C. § 924 (e):

(1)

In the case of a person who violates section 922(g) of this title and has three previous convictions

by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug

offense, or both, committed on occasions different from one another, such person shall be fined

under this title and imprisoned not less than fifteen years, and, notwithstanding any other

provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to,

such person with respect to the conviction under section 922(g).

(2) As used in this subsection—

(A) the term “serious drug offense” means—

(i)

an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled

Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a

maximum term of imprisonment of ten years or more is prescribed by law; or

(ii)

an offense under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or

more is prescribed by law;

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding

one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such term if committed by an

adult, that—

(i)

has as an element the use, attempted use, or threatened use of physical force against the person of

another; or

(ii)

is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another; and

(C)

2

the term “conviction” includes a finding that a person has committed an act of juvenile

delinquency involving a violent felony.

STATEMENT OF THE CASE

A. Procedural History1

Mr. Lassend filed a petition for habeas relief pursuant to 28 U.S.C. §2255. Included in

his claims for relief was a claim that - - pursuant to Johnson v. United States, 135 S.Ct. 2551

(2015) (“Johnson II”) - - his sentence under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e), was imposed in violation of the Constitution.

On July 11, 2017, the district court denied Mr. Lassend’s habeas claims, including his

Johnson claims. (Appendix C). On September 7, 2017, Mr. Lassend filed a timely notice of

appeal (RA 285), and also filed for a motion for a certificate of appealability. (RA 286-294). On

September 11, 2017, the District Court issued a certificate of appealability “as to petitioner’s

claim that the sentence under the ACCA was imposed in violation of the Constitution.” (RA295296).

On August 2, 2018, the United States Court of Appeals for the First Circuit denied Mr.

Lassend’s appeal. (Exhibit A). On October 26, 2018, it denied Mr. Lassend’s petition for

rehearing/rehearing en banc. (Exhibit B).

B. Facts Relevant To Resolution Of The Petition

On October 11, 2011, after a jury trial, Mr. Lassend was convicted of being a felon in

possession of a firearm and a felon in possession of ammunition. The Probation Department

prepared a presentence report (“PSR”). (SRA 1-27). Pursuant to the PSR, paragraph 31, Mr.

Matters contained in the Appendix at the First Circuit will be designated by RA-page

number. Matters contained in the Sealed Record Appendix will be designated by SRA-page

number.

1

3

Lassend was found to be “subject to the Armed Career Criminal provisions as described at 18

U.S.C. § 924(e) and the guidelines at U.S.S.G. § 4B1.4 as: (1) the offense of conviction is a

violation of 18 U.S.C. § 922(g); and (2) the defendant has at least three prior convictions for a

violent felony or serious drug offense or both, committed on occasions different from one

another.” (SRA 7). The PSR, paragraph 48, stated that the defendant was subject to the ACC

provisions because of offenses specified in paragraphs 38, 39, 40 and 43 of the PSR. These

convictions were respectively: New York robbery in the first degree; New York robbery in the

first degree; New York assault in the second degree; and Massachusetts assault and battery by

dangerous weapon/ assault by dangerous weapon. (SRA 8-11)

Mr. Lassend objected to the conclusion that he was an armed career criminal on the basis

that “the residual clause that determines the nature of the predicate offenses that trigger

violations of the Act (and the subsequent sentence) is unconstitutionally void for vagueness.”

(SRA 24). At the sentencing hearing, the district court overruled this objection (RA 52) and

found that Mr. Lassend qualified as an armed career criminal. (RA 56). The judgment issued

wherein Mr. Lassend was sentenced to 235 months imprisonment to be followed by five years of

supervised release. (RA 43-48).

As the district court described in its memorandum and order: (“Memorandum”), Mr.

Lassend contends that none of his five prior convictions counted as “predicate offenses under

either the force clause or the enumerated offenses clause.” (Appendix C). Ultimately, the

district court found that the following three convictions qualified as “violent felonies” under the

ACCA: (1) a 1997 New York conviction for robbery in the first degree (“robbery conviction”);

(2) a 1998 New York conviction for attempted assault in the second degree (“attempted assault

conviction”) and (3) a 2010 Massachusetts conviction for assault with a dangerous weapon

4

(“ADW conviction”). (ADD. 29-43). In this petition to this Court, Mr. Lassend challenges that

the two predicate New York convictions are “violent felonies.”

1. Relevant facts concerning the first degree robbery conviction

The Government introduced a “Certificate of Disposition Indictment”

from the Clerk of the Supreme Court of the State of New York. (RA 115). According to this

Certificate, Mr. Lassend was convicted on September 10, 1997, of robbery in the first degree in

violation of N.Y. P.L. § 160.15(4). A conviction under that provision requires: “A person is

guilty of robbery in the first degree when he forcibly steals property and when, in the course of

the commission of the crime or of immediate flight therefrom, he or another participant in the

crime…(4) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other

firearm; except that in any prosecution under this subdivision, it is an affirmative defense that

such pistol, revolver, shotgun, machine gun or other firearm was not a loaded weapon from

which a shot, readily capable of producing death or other serious physical injury, could be

discharged….”

2. Facts Relevant To Attempted Assault Conviction

The Government also introduced a “Certificate of Disposition Indictment” for the

attempted assault conviction from the Clerk of the Supreme Court of the State of New York.

(RA 115). Unlike the case with the robbery Certificate, this Certificate did not specify under

which subsection of the assault statute, N.Y. P.L § 120.05, Mr. Lassend was convicted. That

statute has quite a number of subsections.

The Government then sought leave to introduce other documents related to the attempted

assault conviction. It introduced a four count indictment against Mr. Lassend with the second

count reciting: “The Grand Jury of the County of the Bronx by this Indictment, accuses the

defendant Kirk Lassend of the crime of assault in the second degree committed as follows: The

5

defendant, Kirk Lassend, on or about March 27, 1997, with intent to cause physical injury to

another person, Willie Wells, did cause such injury to Willie Wells, where at the time of the

commission of the act, the defendant was confined in a correctional facility pursuant to having

been charged with or convicted of a crime.” (DE 182, Exhibit 1). The indictment did not list

which subdivision of N.Y. P.L. § 120.05 governed the charge.

The Government also introduced the transcript of the plea hearing wherein Mr. Lassend’s

attorney stated that Mr. Lassend wished to plead guilty to attempted assault pursuant to count

two of the indictment. (RA 139-149). During the course of the plea colloquy, the elements of

second degree assault were not addressed, nor did Mr. Lassend admit that he was acting

intentionally. The New York court even told Mr. Lassend that he was “pleading guilty to a

nonviolent felony offense here…” (RA144).

REASONS FOR GRANTING THE PETITION

This Court should grant Mr. Spencer’s petition because two of the predicate offenses

which the district court found qualified as “violent felonies” under the ACCA were not in fact

“violent felonies” under the force clause of the ACCA and thus his sentence is unconstitutional

under the due process clause of the Fifth Amendment as per Johnson II. This Court should grant

the petition to resolve a circuit split as to whether or not a New York assault conviction - - which

requires no showing of an act of violent force - - is a “violent felony.” Moreover, the Court

should grant the petition to resolve the question whether a New York predicate offense of armed

robbery requires proof that the weapon used was a dangerous one and that the individual himself

acted intentionally in the use of the dangerous weapon.

A. This Court Should Grant This Petition To Resolve The Circuit Split As To Whether A

Crime Which Does Not Require The Actual Use Of Violent Force Can Qualify As A

“Violent Felony” Under The ACCA.

6

The First Circuit erred in finding that the New York attempted assault conviction under

N.Y. P.L § 120.05(7) categorically qualified as a “violent felony.” The ACCA requires three

previous convictions for a “violent felony or serious drug offense.” 18 U.S.C. § 924(e)(1).

“Violent felony” is defined, for purposes of Mr. Lassend’s case, as one that “has as an element

the use, attempted use, or threatened use of physical force against the person of another….” 18

U.S.C. § 924(e)(2)(B)(i). Under section 120.05(7), a person is guilty of second degree assault if

(while incarcerated): “with intent to cause physical injury to another person, he causes such

injury to such person or to a third person…”

As is clear from the language of the statute, no use of “violent force” is required for a

conviction under section 120.05(7). Faced with a statute that does not require a New York

prosecutor to prove “violent force,” the First Circuit instead found that the statute necessarily

meets the “violent force” requirement because “[i]t is hard to imagine how a prisoner could

intentionally cause physical harm to someone in prison by, for instance, failing to fulfill a legal

duty. And Lassend does not point us to a single New York case in which a conviction under

§120.05(7) has been obtained based on nonviolent conduct.” Lassend v. United States, 898 F.3d

115, 127 (1st Cir. 2018).

The First Circuit’s opinion blatantly removes the requirement that the Government bears

the burden to show that the elements of the offense categorically amount to “violent force.” As

this Court recently stated in Stokeling v. United States, ---S.Ct. ----2019 WL 189343, *6 (2019)

(emphasis in original):

7

Our understanding of ‘physical force comports with Johnson v. United States,

559 U.S. 133 (2010)…There, the Court held that ‘actua[l] and intentiona[l]

touching’” – the level of force necessary to commit common-law misdemeanor

battery – did not require the ‘degree of force’ necessary to qualify as a ‘violent

felony’ under the ACCA’s elements clause….[The Court] ‘held that ‘physical

force means ‘violent force – that is, force capable of causing physical pain or

injury to another person.’ Id. at 140.

In this case, there simply is no requirement under the statute that the defendant used

violent force at all; instead, all that is required is intention and injury. In reaching this opinion,

the First Circuit downplayed its own decision in Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015). In

Whyte, the First Circuit examined Connecticut’s third-degree assault statute and found that the

petitioner had been convicted of Conn. Gen. Stat. 53a-61(a)(1): “With intent to cause physical

injury to another person, he causes such injury to such person or to a third person….” Id. at 467.

That language is indistinguishable from N.Y. Penal Law 120.05(7).

The Court found that the plain language of the Connecticut statute (as here) required only

two elements: intent and causing injury. As in Whyte, the Government here has not shown that

New York requires violent force as an element. Id. at 469. The Whyte court, id., cited with

approval United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006) for the

proposition that a conviction under a statute requiring only intent and injury could, for example,

happen “by ‘telling the victim he can safely back his car out while knowing an approaching car

driven by an independently acting third party will hit the victim.’” Contrary to the First Circuit’s

opinion, a prisoner certainly could cause injury by telling a prisoner to do/not do something

knowing that it will result in harm, but not using “force.” Conflating causation of injury with use

of violent force further fails because it does not recognize that, under New York law, a party can

be convicted of second degree assault based on omissions, as opposed to actions - - thus

completely negating any argument over whether there was the “use” of force at all and whether

8

that force is “violent.” Under New York law, “criminal liability may be based on an omission to

act where there is a legal duty to do so.” People v. Miranda, 612 N.Y.S.2d 65, 66 (App. Div.

1994). In People v. Gladden, 118 Misc.2d 831, 831-32 (Sup. Ct. 1983), for example, the

defendant mother was charged under section 120.05(1) - - intending to cause, and causing,

serious physical injury - - based on her failure to feed her child. Although the court dismissed

the indictment on evidentiary grounds, it confirmed that a parent, upon whom the law imposes

“the duty of providing support for the child,” can be guilty of assault by “fail[ing] to perform

[that] legal duty.” Id. at 833. See also United States v. Oliver, ---Fed.Appx.---, 2018 WL

1547595, *3 (3rd Cir. 2018) (where, under Pennsylvania law, an aggravated assault can be

committed by either an act or omission, Government could not establish categorically the use of

“physical force.”)

Below the Government argued that United States v. Castleman, 134 S.Ct. 1408 (2014)

somehow undermined the holding in Whyte. But the Whyte court specifically considered

Castleman and found that the decision supported its holding that the Connecticut statute could

not be found to be an “aggravated felony.” Whyte, 807 F.3d at 470-471. Moreover, other courts

have rejected the same argument. For example, in United States v. McNeal, 818 F.3d 141, 156

(4th Cir. 2016), the Fourth Circuit examined its precedent on the issue of “reading in” the use of

violent force where none is set forth in the elements.

In our Torres-Miguel decision [United States v. Torres-Miguel, 701 F.3d 165 (4th Cir.

2012)] in 2012, we further examined what it means for a crime to have as an element the

‘use’ of physical force. We concluded that a California statute, which prohibited

willfully threatening to commit a crime that would result in death or great bodily injury,

failed to qualify as a crime of violence under Guidelines section 2L1.2. See TorresMiguel, 701 F.3d at 166. Our ruling rested on the distinction between using physical

force and causing bodily injury. We reasoned that ‘a crime may result in death or serious

bodily injury without use of physical force.’ Id. at 168.

9

In a footnote, the Fourth Circuit stated: “The government suggests that the Supreme

Court decision in United States v. Castleman, ---U.S. ---, 134 S.Ct. 1405, 188 L.Ed.2d 426

(2014), has abrogated the distinction that we recognized in Torres-Miguel between the use of

force and the causation of injury. That strikes us as a dubious proposition. Writing for the

Castleman majority, Justice Sotomayor expressly reserved the question of whether causation of

bodily injury ‘necessarily entails violent force.’ See 134 S.Ct. at 1413; see also id. at 1414

(emphasizing that Court was not deciding question of whether or not causation of bodily injury

‘necessitate[s] violent force, under Johnson’s definition of that phrase.”). McNeal, 818 F.3d at

156, n. 10. See also United States v. Reid, 861 F.3d 523, 528 (4th Cir. 2017) (“To be sure,

Castleman did not construe [the] ACCA’s force clause[.]”).

It is clear that the circuit courts have come to differing views as to whether intent and

injury can “substitute” for the element of “violent force.” Interestingly, Whyte has been cited as

supportive of the (correct) proposition that violent force as required under Johnson I and

Stokeling cannot be established merely by intent and resulting injury. In a dissent in United

States v. Rice, 813 F.3d 704, 707-08 (8th Cir. 2016) (emphasis added), Judge Kelly stated:

A number of courts and judges, including a clear plurality of the courts of appeals, have

concluded that a person may cause physical or bodily injury without using violent force.

Whyte v. Lynch, 807 F.3d 463, 469–72 (1st Cir.2015) ; United States v. Torres–Miguel,

701 F.3d 165, 168–69 (4th Cir.2012) ; United States v. Villegas–Hernandez, 468 F.3d

874, 880–82 (5th Cir.2006) ; United States v. Perez–Vargas, 414 F.3d 1282, 1286–87

(10th Cir.2005) ; Chrzanoski v. Ashcroft, 327 F.3d 188, 196 (2d Cir.2003) ; United States

v. Fischer, 641 F.3d 1006, 1010–11 (8th Cir.2011) (Colloton, J., concurring); United

States v. Anderson, 695 F.3d 390, 404–05 (6th Cir.2012) (White, J., concurring). In my

view, they are correct.”

Given the circuit split on the issue and given that the First Circuit’s opinion abrogates Mr.

Lassend’s Fifth Amendment rights to have his sentence enhanced under the ACCA only if the

10

New York statute categorically meets the “elements clause” requiring “violent force,” this Court

should grant Mr. Lassend’s petition.

B. This Court Should Grant The Petition To Determine Whether Mr. Lassend Can Be Held

To Have Committed A “Violent Felony” When The Armed Robbery Statute Allows

Convictions Based On Use Of Non-Dangerous Weapons And Also Imposes Strict

Accomplice Liability That Does Not Comport With The Purpose Of Imposing An

Enhanced ACCA Sentence.

This Court also should grant Mr. Lassend’s petition where the First Circuit’ opinion

affirming a New York armed robbery conviction as a predicate ACCA offense further can be

based on the use of non-violent force and also can be imposed on the basis of strict accomplice

liability. N.Y. P.L. § 160.15(4) (emphasis added) states: “A person is guilty of robbery in the

first degree when he forcibly steals property and when, in the course of the commission of the

crime or of immediate flight therefrom, he or another participant in the crime…(4) Displays

what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in

any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver,

shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily

capable of producing death or other serious physical injury, could be discharged….”

As an initial matter, as found by the District Court (Exhibit C, p. 15) (internal citation

omitted) “[u]nder New York law, the ‘forcibly stealing’ element can be satisfied by minimal

force and therefore does not satisfy the requirements of the force clause. New York courts have

held that the ‘force’ requirement of § 160.15 can be satisfied by bumping the victim, blocking

the victim’s passage or engaging in a brief tug-of-war.” Thus, something more is required to

meet the force clause. In its Opinion, the First Circuit acknowledges that “under New York law,

an individual can violate §160.15(4) by displaying an item that is not actually a firearm but

appears to the victim to be such. There is a New York case suggesting that ‘a towel wrapped

11

around a black object…, a toothbrush held in a pocket….[,] or even a hand consciously

concealed in clothing’ can satisfy the display element of §160.15(4) ‘if under all the

circumstances the defendant’s conduct could reasonably lead the victim to believe that a gun is

being used during the robbery.’ Lassend, 898 F.3d at 128-29. The Court finds that “what

matters…is not whether the defendant’s displayed item is actually capable of inflicting physical

injury, but rather whether the defendant’s actions cause the victim to be in reasonable fear of

bodily harm.” Id. at 129. But the victim’s perception cannot change Johnson I’s requirement of

the use or threatened use of “violent force – that is, force capable of causing physical pain or

injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010). A hand in a

pocket is simply not a “dangerous weapon” capable of inflicting physical pain or injury.

The opinion here also stands in stark contrast to another First Circuit opinion, United

States v. Starks, 861 F.3d 306 (1st Cir. 2017), where the First Circuit held that Massachusetts

armed robbery does not qualify categorically as a violent felony. There, the Court found that a

Massachusetts armed robbery conviction could be premised on the defendant carrying a

dangerous weapon but never showing it to the victim and thus did not meet the “violent force”

definition under the ACCA. Id. at 320. Starks found that Massachusetts armed robbery did not

require proof of a “touching …committed with a weapon that is designed to produced or used in

a way that is capable of producing seriously bodily harm or death.” Id. at 323-24, quoting from

United States v. Whindleton, 797 F.3d 105, 115 (1st Cir. 2015) (emphasis added). A review of

New York’s jury instructions for NY PL 160.15(4) shows that there is no requirement that the

defendant actually display a firearm but only that it “appears” to be one. Thus, in New York, a

defendant can be convicted under this subsection from concealing a hand or a toothbrush during

the course of a robbery. But because that hand or toothbrush is not capable of producing

12

“seriously bodily harm or death,” Mr. Lassend’s conviction under this subsection cannot serve as

an ACCA predicate. As the Court stated in Starks: “even if most armed robberies are in fact

violent, if a conviction can be obtained without proof of violent force, then the offense does not

qualify as a violent felony under the ACCA’s force clause.” Starks, 861 F.3d at 815. See also

United States v. Whindleton, 797 F.3d 105, 114 (2015) (emphasis added) (“As a result, the

element of a dangerous weapon imports the “violent force” required by Johnson into the

otherwise overbroad simple assault statute.”).

Even if the display of a toothbrush can somehow qualify as “violent force,” upholding

Mr. Lassend’s conviction here does not comport with the Fifth Amendment because a conviction

under section 160.15(4) can be premised on strict accomplice liability. Under New York law,

“strict liability for an aggravating circumstance attaches to an accomplice, regardless of the

latter’s intent, knowledge or conduct with respect to the aggravating circumstance.” People v.

Gage, 259 A.D.2d 837, 839, 687 N.Y.S2d 202, 204 (3rd Dept. 1999) (citation omitted). A statute

that does not require Mr. Lassend’s intent to use physical force cannot serve as a valid ACCA

predicate.

As an initial matter, the Opinion states that the ACCA focuses on the “elements” of the

predicate offense, Lassend, 898 F.3d at 130, and if Congress wanted to exclude accomplice

liability, it could have done so. Id. at 133.

But this assertion flies in the face of Leocal v.

Ashcroft, 543 U.S. 1 (2004). There, this Court found that a Florida OUI could not count as a

violent predicate because “statutes such as Florida's do not require any mental state with respect

to the use of force against another person, thus reaching individuals who were negligent or less.”

Id. at 13 (emphasis added). Here, the First Circuit’s opinion creates a worse situation - -

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allowing a violent felony to be predicated on strict liability, not even knowledge or negligence,

as it relates to the “mental state with respect to the use of force.”

Second, allowing the New York robbery statute to serve as a violent felony predicate

subverts a key goal of the ACCA which is “incapacitating repeat violent offenders…consistently

notwithstanding the peculiarities of state law.” Shepard v. United States, 544 U.S. 13, 35 (2005)

(O’Connor, J., dissenting, joined by Kennedy and Breyer, JJ.) (emphasis in original). The

opinion itself acknowledges that - - contrary to New York Law - - under federal law “to prove

aiding and abetting the crime of using or carrying a firearm during a crime of violence, the

government must prove ‘that the defendant actively participated in the underlying [crime] …

with advance knowledge that a confederate would use or carry a gun during the crime’s

commission…” Lassend, 898 F.3d at 133 (citing Rosemund v. United States, 572 U.S. 65

(2014)). This kind of inconsistency is exactly why the mens rea under Leocal is required and

strict liability does not suffice.

Requiring an individual intent to employ violent force in the ACCA serves an important

purpose. Given “the Act’s basic purposes,” Begay v. United States, 553 U.S. 137, 146 (2008),

ACCA’s residual clause itself (when it was in effect) was limited to crimes requiring

“purposeful, violent, and aggressive conduct” rather than “crimes that impose strict liability,

criminalizing conduct in respect to which the offender need not have had any criminal intent at

all.” Id. at 145. Mr. Lassend’s “prior record of [first-degree New York robbery], a strictliability crime, differs from a prior record of violent and aggressive crimes committed

intentionally.” Id. at 148. As the conviction does not require “intentional or purposeful conduct”

as to actual or threatened violence, there’s “no reason to believe that Congress intended a 15-year

mandatory prison term.” Id. at 146. See also Stokeling, 2019 WL 189343, * 13 (Sotomayor, J.,

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dissenting) (discussing that the purpose of the ACCA was not to sweep lower-grade offenders

into its reach).

In short, Mr. Lassend’s robbery conviction cannot serve as an ACCA predicate offense

because section 160.15(4) allows defendants to be convicted without the use or display of a

firearm or other dangerous weapon capable of producing serious bodily injury or death.

Moreover, it cannot stand because a defendant can be convicted without ever having any

knowledge or intent of the use of a weapon during the commission of a robbery.

CONCLUSION

For the reasons set forth above, the petitioner, Kirk Lassend, respectfully requests that

this Court grant his petition for a writ of certiorari.

Respectfully submitted,

KIRK LASSEND

By his counsel,

/s/Karen A. Pickett

_____________________________

Karen A. Pickett

Pickett Law Offices, P.C.

Counsel of Record

125 High Street, 26th Floor

Boston, MA 02110

(617) 423-0485

kpickettlaw@gmail.com

Dated: January 24, 2019

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