Memorandum — William Frazier, Petitioner v. United States

No. 19-8710

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________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

WILLIAM FRAZIER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

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JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

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________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 19-8710

WILLIAM FRAZIER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

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1.

Petitioner contends (Pet. 9-19) that 18 U.S.C. 1959(a),

known as the violent crimes in aid of racketeering (VICAR) statute,

requires the government to prove that he had specific knowledge

that the enterprise in which he sought to maintain or increase his

position by committing assault with a dangerous weapon was engaged

in

racketeering

activity.

Petitioner

previously

raised

that

contention in a petition for a writ of certiorari, along with a

vagueness challenge to his conviction under 18 U.S.C. 924(c).

See

Pet. at 7-17, Frazier v. United States (No. 17-8381) (Mar. 28,

2018).

This Court granted the petition, vacated the judgment, and

2

remanded for further consideration in light of Sessions v. Dimaya,

138 S. Ct. 1204 (2018), which found vagueness in a statutory

provision

that

was

nearly

petitioner’s second claim.

identical

to

the

See 139 S. Ct. 319.

one

at

issue

in

For the reasons

stated in our previous brief in opposition in this case, further

review of petitioner’s first claim, about the VICAR statute,

remains unwarranted.

See Br. in Opp. at 7-14, Frazier v. United

States (No. 17-8381) (Aug. 24, 2018).

The court of appeals

correctly

that

rejected

petitioner’s

argument

Section

1959(a)

contains his proposed mens rea element, and its decision does not

conflict with any decision of this Court or of another court of

appeals.

See Pet. App. 14a-15a.

Petitioner asserts (Pet. 13, 15) that this Court’s decision

in Rehaif v. United States, 139 S. Ct. 2191 (2019), additionally

supports his contention that the VICAR statute requires proof that

a defendant knew that the enterprise was engaged in racketeering

activity.

He identifies no court of appeals that has adopted his

reading of the statute on that, or any other, basis.

In any event,

as the court of appeals determined, petitioner’s reliance on Rehaif

is unavailing because, even if it supported his claim, any alleged

error was harmless.

Pet. App. 4a n.1 (citing Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

The court observed that petitioner

“was the head of a local chapter of the enterprise,” had “joined

the

enterprise

soon

after

it

had

committed

various

acts

of

racketeering,” and “was personally acquainted with the national

3

president, who ordered these acts.”

Ibid.

Although petitioner

contests (Pet. 18-19) whether the particular facts on which the

court relied were sufficiently probative to render any alleged

error harmless, that factbound dispute does not warrant this

Court’s review.

2.

Petitioner separately contends (Pet. 20-21) that the

Court should hold this case for Borden v. United States, cert.

granted, No. 19-5410 (Mar. 2, 2020), in which the Court has granted

review to address the question whether crimes that can be committed

with a mens rea of recklessness can satisfy the definition of a

“violent

felony”

in

the

elements

clause

of

the

Armed

Career

Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(i). Petitioner

was convicted of using or carrying a firearm during or in relation

to a crime of violence, in violation of 18 U.S.C. 924(c).

App. 2a.

Pet.

The definition of a “crime of violence” in 18 U.S.C.

924(c)(3)(A) is similar, but not identical, to the definition of

a “violent felony” in the ACCA’s elements clause.

Compare 18

U.S.C. 924(c)(3)(A), with 18 U.S.C. 924(e)(2)(B)(i).

Petitioner

therefore contends (Pet. 20) that the decision in Borden may affect

the validity of his Section 924(c) conviction.

Contrary to petitioner’s contention, however, because his

predicate crime of violence -- assault with a dangerous weapon

under the VICAR statute -- could not have been committed with a

mens rea of recklessness, no reason exists to hold this case for

Borden.

A federal VICAR offense does not exist independently of

4

the underlying state or federal VICAR predicate charged in a

particular case.

See 18 U.S.C. 1959(a) (premising liability on

specific criminal acts “in violation of the laws of any State or

the United States”).

A violation of Section 1959(a)(3) requires

proof that “a defendant’s presently charged conduct constitute[s]

an assault under federal law, while simultaneously also violating

a state law.”

United States v. Keene, 955 F.3d 391, 397 (4th Cir.

2020); see id. at 398-399 (“Congress intended for individuals to

be convicted of VICAR assault with a dangerous weapon by engaging

in conduct that violated both that enumerated federal offense as

well as a state law offense.”).

A conviction under the VICAR

statute thus requires proof that the “predicate acts constitute

state law crimes.”

United States v. Carrillo, 229 F.3d 177, 185

(2d Cir.), cert. denied, 531 U.S. 1026 (2000).

Petitioner’s indictment shows that his offense qualified as

assault with a dangerous weapon under Ohio’s felonious assault

statute, which makes it a crime to “knowingly” “[c]ause serious

physical harm to another” or “[c]ause or attempt to cause physical

harm to another

* * *

by means of a deadly weapon or dangerous

ordnance.” Ohio Rev. Code Ann. § 2903.11(A)(1) and (2) (LexisNexis

2012);

see

Third

Superseding

Indictment

19-22.

Because

the

commission of felonious assault under Ohio law requires knowing

conduct, that offense does not implicate the question in Borden

about crimes that can be committed with a mens rea of recklessness

-- even if, as petitioner asserts (Pet. 20), some “other state-

5

law assault offenses” may require only recklessness.

And because

the particular state-law offense committed here was a necessary

component

of

petitioner’s

federal

offense

of

assault

with

a

dangerous weapon in aid of racketeering, see 18 U.S.C. 1959(a),

the latter offense likewise required proof of knowing conduct.

Accordingly, the Court’s resolution of the question presented in

Borden will not affect the validity of petitioner’s conviction,

and holding the petition for Borden is not warranted.

That is true notwithstanding that the court of appeals took

a different analytical path to the same result.

It relied on the

“generic” definition of assault with a dangerous weapon under 18

U.S.C. 1959(a)(3) -- into which petitioner’s assault had to fit

-- and on circuit precedent holding that assaults committed with

a mens rea of recklessness can be categorical crimes of violence.

Pet. App. 3a (citing United States v. Verwiebe, 874 F.3d 258 (6th

Cir. 2017), cert. denied, 139 S. Ct. 63 (2018)).

Although that

circuit precedent could be affected by Borden, it was unnecessary

to support the result in this case because petitioner’s VICAR

predicate in fact required knowing conduct.

6

The petition for a writ of certiorari should be denied. *

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

AUGUST 2020

The government waives any further response to the

petition for a writ of certiorari unless this Court requests

otherwise.

*