Petition for Writ of Certiorari — Kareem Davis, Petitioner v. United States

Supreme Court briefOct 16, 2023

Ask Donna

What actually matters in this document.

Text

RECORD NO. ________

IN THE

Supreme Court of the United States

KAREEM DAVIS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Richard H. Rosenberg, Esq.

Counsel of Record

Law Office of Richard H. Rosenberg

217 Broadway, Ste. 707

New York, NY 10007

(212) 586-3838

richrosenberg@msn.com

Clara S. Kalhous, Esq.

116 Pinehurst Ave. #H13

New York, NY 10033

(347) 415-9523

clara.kalhous@gmail.com

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

QUESTION PRESENTED

The Court’s jurisdiction is respectfully invoked to answer a question on which

the circuit courts of appeals are split:

Is murder in aid of racketeering (“VICAR murder”), in violation of 18 U.S.C. §

1959(a)(1), an indivisible offense requiring a categorical analysis based on the

generic federal definition of murder or a divisible offense to which the modified

categorical approach applies for crime of violence predicate analysis under 18

U.S.C. § 924(c)(3)(A)?

The Congressional Record is clear that Congress intended the generic

definition of murder to apply to prosecutions under § 1959. Yet, the circuits are split

on the application of § 1959 as a crime of violence predicate. Some circuits,

including the Sixth and the Ninth, perform a categorical analysis, looking to the

generic federal definition of murder. Others, including the First and Second,

perform a modified categorical analysis, looking to the elements of the charged state

offense predicate. Courts in the Tenth Circuit say that a conviction under § 1959

must satisfy both the federal and the state definition of the charged crime. The

Fourth Circuit disclaims application of the categorical approach altogether. The

Court’s guidance is urgently needed to ensure uniformity in the application of

federal law.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Kareem Davis and United States of America.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

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

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

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW......................................................................................................... 1

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

CONSTITUTIONAL AND STATUTORY PROVISIONS............................................. 1

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

REASONS FOR GRANTING THE WRIT .................................................................... 7

Summary of the Argument ........................................................................................ 7

Argument .................................................................................................................... 8

This Court Should Grant Certiorari to Clarify that Analysis of the

Sufficiency of a VICAR Murder Conviction for a § 924(c)(3)(A) Predicate

Crime of Violence Requires Consideration of the Generic Federal Definition

of Murder. ........................................................................................................ 8

II. This Court Should Grant Certiorari Because the Circuits’ Differing

Approaches to the VICAR Murder Analysis Results in an Inequitable

Application of Federal Law. .......................................................................... 16

III. To the Extent Differing Approaches Are Compatible with the Statutory

Text of 18 U.S.C. § 1959, the Rule of Lenity Compels Application of the

Generic Offense Definitions. ......................................................................... 18

IV. This Case Presents a Strong Vehicle to Address the Issues Identified

Herein. ........................................................................................................... 21

CONCLUSION............................................................................................................. 21

APPENDIX:

Opinion of the United States Court of Appeals for the Second Circuit .....................A1

iii

TABLE OF AUTHORITIES

Cases

Alvarado-Linares v. United States, 44 F.4th 1334 (11th Cir. 2022) .................... 13, 14

Battle v. United States, No. 3:14-CV-01805, 2021 WL 1611917 (M.D. Tenn. Apr. 26,

2021), aff'd, No. 21-5457, 2023 WL 2487342 (6th Cir. Mar. 14, 2023), cert.

denied, 143 S. Ct. 2621 (2023) ................................................................................. 15

Becker v. Montgomery, 532 U.S. 757 (2001)................................................................ 10

Bifulco v. United States, 447 U.S. 381 (1980) ............................................................. 18

Borden v. United States, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (2021) .................. 5, 17, 18

Bryan v. United States, 524 U.S. 184 (1998) ........................................................ 19, 21

Cousins v. United States, 198 F. Supp. 3d 621 (E.D. Va. 2016) ........................... 10, 12

Danforth v. Minnesota, 552 U.S. 264 (2008) ............................................................... 11

Hall v. United States, No. 3:20-CV-00646, 2021 WL 119638

(M.D. Tenn. Jan. 13, 2021) ...................................................................................... 10

In re Irby, 858 F.3d 231 (4th Cir. 2017) ...................................................................... 12

In re Thomas, 988 F.3d 783 (4th Cir. 2021) ................................................................ 10

Jerome v. United States, 318 U.S. 101 (1943)............................................................. 10

Kansas v. Marsh, 548 U.S. 163 (2006) ........................................................................ 19

Kinard v. United States, No. 3:21-CV-00161-GCM, 2021 WL 5099596

(W.D.N.C. Nov. 2, 2021) ........................................................................................... 10

Logan v. United States, 552 U.S. 23 (2007) ................................................................ 11

Manners v. United States, 947 F.3d 377 (6th Cir. 2020) ............................................ 10

McBoyle v. United States, 283 U.S. 25 (1931)............................................................. 19

Moore v. United States, No. 16-3715-PR, 2021 WL 5264270 (2d Cir. Nov. 12, 2021)10

Sorto v. United States, No. CR 08-167-4 (RJL), 2022 WL 558193

(D.D.C. Feb. 24, 2022) .......................................................................................... 9, 10

Thomas v. United States, No. 2:11-CR-58, 2021 WL 3493493

(E.D. Va. Aug. 9, 2021) ............................................................................................. 10

United States v. Báez-Martínez, 950 F.3d 119 (1st Cir. 2020) ................................... 12

United States v. Bass, 404 U.S. 336 (1971) ........................................................... 19, 20

United States v. Begay, 33 F.4th 1081 (9th Cir.), cert. denied, 143 S. Ct. 340,

214 L. Ed. 2d 153 (2022) .......................................................................................... 12

United States v. Begay, 934 F.3d 1033 (9th Cir.2019)............................................ 5, 17

United States v. Castleman, 572 U.S. 157 (2014) ......................................................... 5

United States v. Davis, 139 S.Ct. 2319 (2019) .................................................. 4, 18, 20

United States v. Davis, 17-cr-610 (LGS) (SDNY) ......................................................... 4

United States v. Davis, 21-1486-cr (2d Cir.) ................................................................. 5

United States v. DeLeon, 318 F. Supp. 3d 1272 (D.N.M. 2018) ................................. 12

United States v. Elmore, 624 F. Supp. 3d 1123 (N.D. Cal. 2022)............................... 14

United States v. Gill, No. CR JKB-07-0149, 2023 WL 349844

(D. Md. Jan. 20, 2023) ........................................................................................ 15, 17

United States v. Kareem Davis, 21-1486-cr, 2023 WL 4582002

(2d Cir. July 18, 2023) ................................................................................................ 1

United States v. Kareem Davis, 21-1486-cr, 74 F.4th 50 (July 18, 2023) .......... passim

United States v. Keene, 955 F.3d 391 (4th Cir. 2020) ........................................... 13, 14

United States v. Kozminski, 487 U.S. 931 (1988) ................................................. 19, 20

United States v. Lanier, 520 U.S. 259 (1997) ............................................................. 19

United States v. Martinez, 545 F. Supp. 3d 1079 (D.N.M. 2021) ............................... 12

United States v. Mathis, 932 F.3d 242 (4th Cir. 2019) ............................................... 10

United States v. Mejia-Quintanilla, 857 F. App'x 956, (Mem)–957 (9th

Cir.), amended, 859 F. App'x 834 (9th Cir. 2021), opinion withdrawn and

superseded on reh'g, No. 17-15899, 2022 WL 3278992 (9th Cir. Aug. 11,

2022), cert. denied, 143 S. Ct. 1094, 215 L. Ed. 2d 402 (2023) ............................... 16

United States v. Mejia-Quintanilla, 859 F. App'x 834 (9th Cir. 2021) ...................... 10

United States v. Pastore, 36 F.4th 423 (2d Cir. 2022) .............................................. 6, 7

United States v. Pastore, -- F.4th --, 2023 WL 6379704 (2d Cir. Oct. 2, 2023) ............ 7

United States v. Rivas Gomez, 2021 WL 431409 (E.D. Cal. Feb. 8, 2021) .......... 14, 15

United States v. Santos, 553 U.S. 507 (2008) ....................................................... 18, 20

United States v. Scott, 990 F.3d 94 (2d Cir.) (en banc), cert. denied,

142 S.Ct. 397 (2021) ............................................................................................... 6, 7

United States v. Toki, 23 F.4th 1277 (10th Cir. 2022) ............................................... 10

United States v. Vederoff, 914 F.3d 1238 (9th Cir. 2019) ........................................... 12

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) ................................... 18, 20

United States. v. Le, 316 F. Supp. 2d 355 (E.D. Va. 2004) ........................................... 9

Statutes

18 U.S.C. § 1111(a) .................................................................................................... 3, 4

18 U.S.C. § 16(a) ............................................................................................................ 2

18 U.S.C. § 1959 ............................................................................................... 11, 20, 21

18 U.S.C. § 1959(a)(1) .......................................................................................... passim

18 U.S.C. § 1962(d) ........................................................................................................ 3

18 U.S.C. § 2 ................................................................................................................... 3

18 U.S.C. § 3156(a)(4)(A) ............................................................................................... 2

18 U.S.C. § 924(c) ............................................................................................... 8, 16, 20

18 U.S.C. § 924(c)(3)(A) ....................................................................................... passim

18 U.S.C. § 924(e)(2)(B)(i) .............................................................................................. 2

18 U.S.C. § 924(j) ............................................................................................. 18, 20, 21

18 U.S.C. § 924(j)(1) ................................................................................................... 2, 3

New York Penal Law § 125.25 .................................................................................. 3, 5

New York Penal Law § 125.25(1) .............................................................................. 6, 7

New York Penal Law § 125.25(2) .............................................................................. 4, 5

New York Penal Law § 125.27 ...................................................................................... 3

New York Penal Law § 20.00 ........................................................................................ 3

Other Authorities

129 CONG. REC. S1, 22,906 (daily ed. Aug. 4, 1983) .................................................. 9

Eskridge, Norms, Empiricism, and Canons in Statutory Interpretation,

66 U. Chi. L. Rev. 671 (1999) ................................................................................... 19

Friendly, Mr. Justice Frankfurter and the Reading of Statutes,

Benchmarks 196 (1967) ............................................................................................ 20

H.R.Rep. No. 98–1030, reprinted in 1984 U.S.S.C.A.N. 3182 ...................................... 9

Teresa Wallbaum, Novel Legal Issues in Gang Prosecutions,

68 DOJ J. Fed. L. & Prac. 99 (2020) .......................................................................... 9

Rules

28 U.S.C. § 1254(1) ........................................................................................................ 1

Sup. Ct. R. 10(a) ........................................................................................................... 11

Sup. Ct. R. 10(c) ........................................................................................................... 11

Sentencing Guidelines

USSG § 4B1.2(a)(1) .................................................................................................. 2, 12

vii

PETITION FOR A WRIT OF CERTIORARI

Kareem Davis (“Davis” or “Petitioner”) respectfully petitions for a Writ of

Certiorari to review the judgment of the United States Court of Appeals for the

Second Circuit in this case.

OPINION BELOW

The precedential opinion of the United States Court of Appeals for the Second

Circuit in United States v. Kareem Davis, 21-1486-cr, 74 F.4th 50 (July 18, 2023),

concerning which this Court’s jurisdiction is invoked, is appended hereto as

Appendix A.

Davis’ remaining claims on appeal, which are not implicated herein, were

decided in a companion Summary Order, United States v. Kareem Davis, 21-1486cr, 2023 WL 4582002 (2d Cir. July 18, 2023).

JURISDICTION

The judgment of the United States Court of Appeals for the Second Circuit

was entered on July 18, 2023. No petition for rehearing was filed. This petition is

timely filed within the 90-day statutory time limitation. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Title 18 U.S. Code section 1959(a)(1) provides, in relevant part, that:

(a) Whoever, . . . for the purpose of gaining entrance to or maintaining

or increasing position in an enterprise engaged in racketeering

activity, murders, . . . any individual in violation of the laws of any

State or the United States, or attempts or conspires so to do, shall be

punished . . . . (1) for murder, by death or life imprisonment, or a fine

under this title, or both; . . .

18 U.S.C. § 1959(a)(1).

Title 18 U.S. Code section 924(j) provides that, “A person who, in the course

of a violation of subsection (c), causes the death of a person through the use of a

firearm, shall—(1) if the killing is a murder (as defined in section 1111), be

punished by death or by imprisonment for any term of years or for life; . . .” 18

U.S.C. § 924(j)(1).

Section 924(c) provides for mandatory minimum sentences for a defendant

“who, during and in relation to any crime of violence . . . , uses or carries a firearm,

or who, in furtherance of any such crime, possesses a firearm.” As is relevant here, a

“crime of violence” is defined as a felony that “has as an element the use, attempted

use, or threatened use of physical force against the person or property of another.”

18 U.S.C. § 924(c)(3)(A). Equivalent language defining a “crime of violence” appears

in 18 U.S.C. §§ 16(a) and 3156(a)(4)(A) and in USSG § 4B1.2(a)(1). Relatedly, the

Armed Career Criminal Act (“ACCA”) defines a “violent felony” in relevant part as a

crime 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).

Section 1111(a) provides:

Murder is the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by poison, lying in wait, or

any other kind of willful, deliberate, malicious, and premeditated

killing; or committed in the perpetration of, or attempt to perpetrate,

any arson, escape, murder, kidnapping, treason, espionage, sabotage,

aggravated sexual abuse or sexual abuse, child abuse, burglary, or

robbery; or perpetrated as part of a pattern or practice of assault or

torture against a child or children; or perpetrated from a premeditated

design unlawfully and maliciously to effect the death of any human

being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

18 U.S.C. § 1111(a).

STATEMENT OF THE CASE

1. In December 2019, a jury convicted Kareem Davis of (I) racketeering

conspiracy (violation of 18 U.S.C. § 1962(d)) in connection with the Killbrook gang

between 2007 and October 2017, (II) murder of Bolivia Beck in aid of racketeering

(violation of 18 U.S.C. §§ 1959(a)(1) and 2), and (III) use of a firearm causing death

(violation of 18 U.S.C. §§ 924(j)(1) and 2). On June 7, 2021, the Honorable Lorna G.

Schofield sentenced Davis to the statutorily mandated term of life in prison on

Count Two and to concurrent terms of 30 years on Counts One and Three. Davis is

serving that sentence.

In Count Two, the Indictment charged that Davis, his brother Gary Davis,

and “others known and unknown” had violated 18 U.S.C. §§ 1959(a)(1) and (2) by

“knowingly murder[ing] and aid[ing] and abet[ing] the murder of Bolivia Beck” in

violation of New York Penal Law §§ 125.25, 125.27, and 20.00 by causing her death

“with intent to cause the death of another person” and by “recklessly engag[ing] in

conduct which created a grave risk of death to another person, and thereby

caus[ing] the death of Beck, and aid[ing] and abet[ing] the same” “under

circumstances evincing a depraved indifference to human life.”

In Count Three, the Indictment charged that Davis, Gary Davis, and “others

known and unknown, during and in relation to a crime of violence for which he may

be prosecuted in a court of the United States, namely, the murder in aid of

racketeering charged in Count Two of this Indictment,” had caused the death of

Bolivia Beck through the use of a firearm, “which killing is murder as defined in

Title 18, United States Code, Section 1111(a),” and aided and abetted the same.

Gary Davis testified at trial that, in the course of shooting at a rival gang

member Joey Colon on a pathway within the Mill Brook Houses, he and Petitioner

had unintentionally shot and killed Beck, who was Colon’s girlfriend, and was

standing next to him at the time. Surveillance video showed that 12 shots had been

fired in 11 seconds.

2. At the conclusion of the trial, Davis moved to dismiss Count Three under

United States v. Davis, 139 S.Ct. 2319 (2019), noting that “there has been litigation

about what constitutes a crime of violence for a 924(c), for a 924(j) conviction, and

that litigation is ongoing. . . . So, . . .we move to dismiss on Count Three, or we move

for a judgment of acquittal that they failed to prove that the firearm was possessed

and discharged in connection with a crime of violence under the technical definition

in the statutes.” United States v. Davis, 17-cr-610 (LGS) (SDNY) at Dkt #546 at p.

820. The district court denied the motion. Id. at 832.

3. On direct appeal, Davis argued that his conviction on Count Three should

be vacated because neither VICAR murder nor reckless conduct under New York

Penal Law § 125.25(2) categorically qualify as a crime of violence predicate. Davis

argued that “murder” in 18 U.S.C. § 1959(a)(1) was an indivisible offense to which

the categorical approach should be applied. Because the generic federal definition of

murder includes reckless conduct while § 924(c)(3)(A) requires the intentional “use

of force capable of causing physical pain or injury,” Davis argued, a VICAR murder

conviction is not a predicate crime of violence for § 924(c). United States v. Davis,

21-1486-cr (2d Cir.) at Dkt. #36 (Brief of Appellant Kareem Davis) at p. 44

(referencing United States v. Castleman, 572 U.S. 157, 169 n.8 [2014] [noting near

unanimity among Courts of Appeals that “recklessness is not sufficient” to

“constitute a ‘use’ of force”]); United States v. Begay, 934 F.3d 1033 (9th Cir.2019)

(holding that federal second-degree murder, which “may be committed recklessly - with a depraved heart mental state -- and need not be committed willfully or

intentionally,” is not a § 924(c)(3)(A) crime of violence)); see also United States v.

Davis, 21-1486-cr (2d Cir.) at Dkt. #62 (Reply Brief of Appellant Kareem Davis) at

p. 15 (referencing Borden v. United States, 141 S. Ct. 1817, 1821, 210 L. Ed. 2d 63

[2021] [an offense committed with a mens rea of recklessness is not a “violent

felony.”]).

Thus, Davis argued, even if the Court employed the modified categorical

approach, reaching the elements of the New York Penal Law § 125.25 provisions

under which Davis had been charged, his conduct had been reckless (e.g., a violation

of § 125.25(2)) – conduct that was insufficient to constitute the intentional use of

violent physical force required for a § 924(c)(3)(A) predicate. United States v. Davis,

21-1486-cr (2d Cir.) at Dkt. #36 at pp. 45-47.

The Second Circuit affirmed Davis’ conviction. First, the Court explained

that, under Second Circuit precedent, the modified categorical approach applied to

the question whether Davis’ VICAR murder conviction was a crime of violence

because, as with the substantive RICO statute, VICAR requires the underlying

predicate crimes “to be identified in the charging instrument.” A7 (United States v.

Davis, 74 F.4th at 54 [referencing United States v. Pastore, 36 F.4th 423, 429 (2d

Cir.2022)]). Therefore, “Davis’ VICAR murder conviction ‘hinged on’ his having

committed the underlying predicate offense of second degree murder in violation of

New York law.” A8 (Davis, 74 F.4th at 54).

Next, the Court concluded that, even though Davis was charged in the

alternative with intentional murder and depraved indifference murder under New

York’s second-degree murder statute, application of the modified categorical

approach confirmed that he had been convicted of second-degree intentional

murder, based on the district court’s jury charge:

Here, the district court’s jury charge on VICAR murder, Count Two,

instructed that, “[u]nder New York Law, murder requires proving that

a person, one, caused the death of a victim; and two, with the intent of

causing the victim's death or another person’s death.” The district

court did not give an instruction on Count Two regarding depraved

indifference murder or its statutory reference to recklessness as

charged in the indictment. Nor was the indictment sent to the jury. It

follows from these instructions that the jury “necessarily found” that

Davis intended to cause death.

A10 (Davis, 74 F.4th at 55 [footnotes omitted]).

The Second Circuit then proceeded to consider whether second-degree

intentional murder under New York Penal Law § 125.25(1) was a crime of violence

under § 924(c)(3)(A). Applying the Circuit’s precedents in United States v. Scott, 990

F.3d 94 (2d Cir.) (en banc), cert. denied, 142 S.Ct. 397 (2021), and United States v.

Pastore, 36 F.4th 423 (2d Cir. 2022)1, the Circuit concluded that it was. A11-A12

(Davis, 74 F.4th at 55-56).

The Second Circuit explained that it had previously held that New York firstdegree manslaughter was a categorical crime of violence “because first-degree

manslaughter, regardless of whether it may be completed by commission or

omission, “can only be committed by a defendant who causes death—the ultimate

bodily injury—while intending to cause at least serious physical injury, necessarily

requiring the use of physical force.” A11 (Davis, 74 F4th at 56 [citing Scott, 990 F.3d

at 98-101]). “To hold otherwise,” the Court concluded, “would preclude courts from

recognizing even intentional murder as a categorically violent crime,” “an untenable

consequence.” Id. Further, because first-degree manslaughter under New York Law

“is a homicide crime second only to murder in its severity,” “[i]t follows logically . . .

that second-degree intentional murder – a crime more serious than first-degree

manslaughter that definitionally requires the use of force – is categorically a crime

of violence under § 924(c).” Id.

REASONS FOR GRANTING THE WRIT

Summary of the Argument

This Court should hear Mr. Davis’ case because the precedential holding of

the Second Circuit that VICAR murder predicated on second-degree intentional

murder under New York Penal Law § 125.25(1) categorically qualifies as a crime of

1 On October 2, 2023, the Second Circuit issued a revised opinion in Pastore –

United States v. Pastore, -- F.4th --, 2023 WL 6379704 (2d Cir. Oct. 2, 2023). The

revisions do not affect the holding cited in Davis, i.e., that “intentionally causing the

death of another person involves the use of force.” See A10 (Davis, 74 F.4th at 56).

violence under 18 U.S.C. § 924(c) conflicts with the intent of Congress in enacting

18 U.S.C. § 1959(a)(1), conflicts with decisions of other circuits in its rationale, and

conflicts in the application with a decision of the Ninth Circuit and a decision within

the Fourth Circuit.

The circuits are split on the question whether the sufficiency of a VICAR

murder conviction under 18 U.S.C. § 1959(a)(1) for an 18 U.S.C. § 924(c)(3)(A) crime

of violence predicate is analyzed under federal law, state law, both, or either. The

Court’s guidance is required to clarify for the circuits that analysis of the sufficiency

of a VICAR murder conviction as a § 924(c) crime of violence predicate requires

analysis under the generic federal definition of murder, as Congress intended.

Without clarification from this Court, the circuits will continue to diverge in

their analysis and in their application, and defendants will be exposed to different

punishments for the same conduct based solely on where they live.

Argument

I. This Court Should Grant Certiorari to Clarify that Analysis of

the Sufficiency of a VICAR Murder Conviction for a §

924(c)(3)(A)

Predicate

Crime

Violence

Requires

Consideration of the Generic Federal Definition of Murder.

The Congressional Record makes clear that the VICAR statute was intended

primarily to facilitate prosecution of crimes by illegal enterprises operating across

state lines:

[T]he need for Federal jurisdiction is clear, in view of the Federal

Government's strong interest, as recognized in existing statutes, in

suppressing the activities of organized criminal enterprises, and the

fact that the FBI's experience and network of informants and

intelligence with respect to such enterprises will often facilitate a

successful Federal investigation where local authorities might be

stymied.

H.R.Rep. No. 98–1030, at 305, reprinted in 1984 U.S.S.C.A.N. 3182, 3484. Thus,

While section [1959] proscribes murder, kidnaping, maiming, assault

with a dangerous weapon, and assault resulting in serious bodily

injury in violation of federal or State law, it is intended to apply to

these crimes in a generic sense, whether or not a particular State has

chosen those precise terms for such crimes.

129 CONG. REC. S1, 22,906 (daily ed. Aug. 4, 1983) (emphasis added).

It is clear that “Congress intended section 1959 to apply uniformly across the

United States as a federal crime. The predicate requirement was included simply to

avoid criminalizing new conduct. Requiring the state predicate to categorically

match the enumerated offense would limit the application of section 1959 ‘to the

drafting whims of fifty state legislatures, a result plainly not intended by

Congress.’” Teresa Wallbaum, Novel Legal Issues in Gang Prosecutions, 68 DOJ J.

Fed. L. & Prac. 99, 105-06 (2020) (quoting United States. v. Le, 316 F. Supp. 2d 355,

360 (E.D. Va. 2004)) (footnotes omitted).

Yet, despite Congress’ clear intent, district courts, circuit courts, and United

States Attorney’s Offices around the country have taken conflicting positions on the

interpretation of § 1959. As the District Court of D.C. recently summarized,

“Because the VICAR statute does not define its offenses, courts have employed two

methodologies to determine whether a VICAR conviction satisfies the elements

clause.” Sorto v. United States, No. CR 08-167-4 (RJL), 2022 WL 558193, at *3 n7

(D.D.C. Feb. 24, 2022). “Some have applied the categorical approach to the statecrime predicate underlying the VICAR conviction, reasoning that the jury

necessarily found that the defendant violated this predicate to return

the VICAR conviction.” Sorto, 2022 WL 558193, at *3 n7 (referencing, e.g., United

States v. Toki, 23 F.4th 1277, 1280–81 (10th Cir. 2022); Moore v. United States, No.

16-3715-PR, 2021 WL 5264270, at *2 (2d Cir. Nov. 12, 2021); United States v.

Mejia-Quintanilla, 859 F. App'x 834, 836 (9th Cir. 2021); United States v. Mathis,

932 F.3d 242, 264–65 (4th Cir. 2019); accord Hall v. United States, No. 3:20-CV00646, 2021 WL 119638, at *8–*10 (M.D. Tenn. Jan. 13, 2021) (collecting cases)).

“[O]thers have applied the categorical approach to the VICAR conviction

itself, relying on the generic federal elements of the offenses enumerated in

the VICAR statute.” Sorto, 2022 WL 558193, at *3 n7 (referencing, e.g., Manners v.

United States, 947 F.3d 377, 379–82 (6th Cir. 2020); Kinard v. United States, No.

3:21-CV-00161-GCM, 2021 WL 5099596, at *4–*5 (W.D.N.C. Nov. 2, 2021); Thomas

v. United States, No. 2:11-CR-58, 2021 WL 3493493, at *6 (E.D. Va. Aug. 9,

2021); Cousins v. United States, 198 F. Supp. 3d 621, 626 (E.D. Va. 2016)).

Although the D.C. District Court held that, “These approaches are not

mutually exclusive, and both are consistent with the VICAR statute” (Sorto, 2022

WL 558193, at *3 n7 [referencing, cf. In re Thomas, 988 F.3d 783, 791–92 (4th Cir.

2021)]), this conclusion is wrong and leads to the uneven application of federal law

in the circuits. “[T]he application of federal legislation is nationwide.” Jerome v.

United States, 318 U.S. 101, 104 (1943). The need for a common understanding of

these provisions, which feature daily in federal jurisprudence, is clear. See also, e.g.,

Becker v. Montgomery, 532 U.S. 757, 762 (2001) (“We granted certiorari to assure

the uniform interpretation of the governing Federal Rules.”); Logan v. United

States, 552 U.S. 23, 27 (2007) (In interpreting a federal criminal statue, “we noted

that our decision would ensure greater uniformity in federal sentences.”); Danforth

v. Minnesota, 552 U.S. 264, 292 (2008) (noting the Court’s “responsibility and

authority to ensure the uniformity of federal law”) (Roberts, C.J., dissenting); Sup.

Ct. R. 10(a), 10(c) (Certiorari is warranted where “a United States court of appeals

has entered a decision in conflict with the decision of another United States court of

appeals on the same important matter,” or where it “has decided an important

question of federal law that has not been, but should be, settled by this Court, or

has decided an important federal question in a way that conflicts with relevant

decisions of this Court.”).

Certiorari should be granted here because the circuits’ varied approaches

lead to conflicting applications of federal law, frustrating Congress’ stated intent to

facilitate cross-state prosecution of the crimes of illegal enterprises by using generic

offense definitions. The circuits’ varied approaches go beyond a simple split and

result in a chaotic application of 18 U.S.C. § 1959.

In the Second Circuit, courts look to the underlying state predicate in the

Indictment, yet, in applying the modified categorical approach, look not to the

charging language, but to the language of the jury charge to determine the state

predicate offense of which the defendant was convicted. The analysis of federal

VICAR murder turns, therefore, on the application of state law. See, e.g., A11

(Davis, 74 F.4th at 56) (concluding that New York second-degree intentional murder

is a categorical crime of violence because it must be committed with the intent to

cause serious physical injury). The First Circuit looks to the state offense as well.

See United States v. Báez-Martínez, 950 F.3d 119, 127–28 (1st Cir. 2020).

The Ninth Circuit, in contrast, has looked to the federal definition of second

degree murder in 18 U.S.C. § 1111(a). United States v. Begay, 33 F.4th 1081 (9th

Cir.), cert. denied, 143 S. Ct. 340, 214 L. Ed. 2d 153 (2022); see also United States v.

Vederoff, 914 F.3d 1238, 1246–47 (9th Cir. 2019) (adopting the generic definition of

murder in order to apply the categorical approach in an appeal challenging the

career offender sentencing enhancement under U.S.S.G. § 4B1.2(a)). Similarly, the

Fourth Circuit looks to the generic federal definition. In re Irby, 858 F.3d 231, 237

(4th Cir. 2017) (“Common sense dictates that murder is categorically a crime of

violence under the force clause....”); see also Cousins v. United States, 198 F. Supp.

3d 621, 626 (E.D. Va. 2016) (“to determine if the alleged VICAR predicate satisfies

this element of a § 1959 offense, the court must look at the elements of

the VICAR predicate as it is generically defined”).

Other courts have required that the defendant’s conduct satisfy both the

federal and state law definitions of the charged offense. See, e.g., United States v.

Martinez, 545 F. Supp. 3d 1079, 1081 (D.N.M. 2021)(“Establishing that Martinez

violated VICAR murder in violation of New Mexico law requires the United States

to prove: (i) that Martinez’ conduct constitutes generic murder; and (ii) that

Martinez’ conduct also violated New Mexico law.”); United States v. DeLeon, 318 F.

Supp. 3d 1272, 1276 (D.N.M. 2018) (concluding that “no matter whether [defendant]

conspired [to commit assault resulting in serious bodily injury in violation of the

state statute,] he only violated VICAR if also he conspired to commit assault

resulting in serious bodily injury, in a generic sense”).

The Eleventh Circuit takes yet another approach, placing discretion for the

analysis in the hands of the Government by looking to the offense as charged.

Alvarado-Linares v. United States, 44 F.4th 1334, 1343 (11th Cir. 2022) (“the

indictment alleged that Alvarado-Linares's VICAR charges were based on violations

of the Georgia malice murder statute and attempted murder statute, and the trial

court told the jury to consider whether Alvarado-Linares committed those crimes as

defined by state law. The modified categorical approach requires us to ask whether

a crime, as charged and instructed, has ‘as an element the use, attempted use, or

threatened use of physical force against the person or property of another.’ 18

U.S.C. § 924(c)(3)(A).”).

Other courts have disclaimed application of the categorical approach entirely.

In United States v. Keene, 955 F.3d 391, 398–99 (4th Cir. 2020), the Fourth Circuit

concluded that, “Reading the language of the VICAR statute under which the

defendants were charged, we conclude that 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,

regardless whether the two offenses are a categorical ‘match.’” Indeed, the Fourth

Circuit explained:

Nothing in [section 1959’s] language suggests that the categorical

approach should be used to compare the enumerated federal offense of

assault with a dangerous weapon with the state offense of Virginia

brandishing. In fact, the most natural reading of the statute does not

require any comparison whatsoever between the two offenses. By using

the verb “assaults” in the present tense, the language requires that a

defendant's presently charged conduct constitute an assault under

federal law, while simultaneously also violating a state law. The

VICAR statute includes no language suggesting that all violations of a

state law also must qualify as the enumerated federal offense, a result

that would be required under the categorical approach.

...

This unambiguous statutory language precludes application of a

formalistic, overinclusive categorical approach, and instead holds

defendants accountable for their actual conduct as presented to a jury.

Keene, 955 F.3d at 397-98. See also United States v. Elmore, 624 F. Supp. 3d 1123,

1142 (N.D. Cal. 2022) (“the best reading of the VICAR murder statute is that it

requires the defendant to ‘murder[ ]’ (for present purposes, an act falling within

the generic meaning) and it requires that this murder be ‘in violation of the laws of

any State or the United States.’ And when assessing whether the murder is in

violation of the relevant law, it requires evaluating whether the defendant’s conduct

violated the law, not whether the law itself is a categorical match for anything.”);

United States v. Rivas Gomez, 2021 WL 431409, at *3 (E.D. Cal. Feb. 8, 2021)

(concluding that “state law predicates may be prosecuted under VICAR, even if the

state statute is broader than the generic definition of the underlying crime, so long

as the conduct in question also satisfies VICAR's generic definition of the charged

offense.”).

Meanwhile, the Government has taken advantage of courts’ confusion to

argue both sides of the split. Compare, e.g., Alvarado-Linares v. United States, 44

F.4th 1334, 1343–44 (11th Cir. 2022) (Government says look to the generic

definition) and Battle v. United States, No. 3:14-CV-01805, 2021 WL 1611917, at *8

(M.D. Tenn. Apr. 26, 2021), aff'd, No. 21-5457, 2023 WL 2487342 (6th Cir. Mar. 14,

2023), cert. denied, 143 S. Ct. 2621 (2023) (“The Government, and certain other

courts, have taken the approach that, in analyzing whether murder in aid of

racketeering under 18 U.S.C. § 1959 constitutes a ‘crime of violence,’ a court is to

consider the elements of ‘generic’ murder, rather than murder as defined by

Tennessee law.”) and United States v. Gill, No. CR JKB-07-0149, 2023 WL 349844,

at *9 (D. Md. Jan. 20, 2023) (“The Government counters that, ‘[i]n assessing

whether a predicate VICAR offense constitutes a ‘crime of violence,’ several courts

within this Circuit have analyzed the generic, federal definition of the crime at

issue, rather than the underlying state predicate offense(s).’ . . . It further avers

that “this approach is consistent with the language of § 924(c), which requires the

predicate offense to be evaluated under federal law.” . . . Therefore, according to the

Government, “the underlying federal crime for [Gill's] VICAR murder offense is

federal premediated first-degree murder, in violation of 18 U.S.C. § 1111.” (Id.)”),

with A7-A8 (Davis, 74 F.4th at 54) (noting the Government’s position that the Court

should analyze Davis’ conviction according to the elements of the state law offense

of conviction) and with United States v. Rivas Gomez, 2021 WL 431409, at *2–4

(E.D. Cal. Feb. 8, 2021) (“[T]he government argues, in essence, that a plain reading

of the VICAR statute and consideration of other relevant factors mean that

a VICAR prosecution for a state law predicate first requires proof that the

defendant violated the generic definition of the charged crime and then also

requires proof that the same conduct constitutes a violation of the particular state

statute.”)

In short, the circuits are confused about the appropriate framework for

analysis of whether VICAR murder under 18 U.S.C. § 1959(a)(1) qualifies as a

crime of violence predicate for a § 924 offense, the Government is taking advantage

of the circuits’ confusion to advocate both sides of the issue, and the resulting

uneven and varied application of federal law is having a disparate impact on

defendants nationwide. This Court’s guidance to resolve these differing approaches

is urgently required.

II. This Court Should Grant Certiorari Because the Circuits’

Differing Approaches to the VICAR Murder Analysis Results

in an Inequitable Application of Federal Law.

In Davis’ case, the Second Circuit held that second-degree murder under New

York Penal Law § 125.25 is categorically a crime of violence. A12. But if Davis had

been charged in California or in Maryland, his second-degree murder conviction

would not have been an adequate predicate crime of violence for a § 924 conviction.

In United States v. Mejia-Quintanilla, 857 F. App'x 956, (Mem)–957 (9th

Cir.), amended, 859 F. App'x 834 (9th Cir. 2021), opinion withdrawn and superseded

on reh'g, No. 17-15899, 2022 WL 3278992 (9th Cir. Aug. 11, 2022)2, cert. denied, 143

S. Ct. 1094, 215 L. Ed. 2d 402 (2023), the Ninth Circuit held that murder under the

California Penal Code is not a crime of violence because it may be committed

2 The superseding opinion finds Mejia-Quintanilla’s appeal barred by the appeal

waiver in his plea agreement but does not disturb the logic of its prior conclusion

concerning California’s murder statute.

recklessly. Id. (“Under recent case law, murder in violation of section 187 of the

California Penal Code is not a crime of violence for purposes of 18 U.S.C. §

924(c). This is because a conviction for an offense with a mens rea of recklessness

does not constitute a crime of violence under the elements clause of 28 U.S.C. §

924(c)(3)(A), see United States v. Begay, 934 F.3d 1033, 1041 (9th Cir. 2019); see

also Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 1834, 210 L.Ed.2d 63

(2021), and section 187 of the California Penal Code permits conviction if a

defendant is found to have a mens rea of recklessness. Cal. Penal Code § 188(a)

(murder conviction under section 187 may be based on ‘express’ or ‘implied’

malice)”).

Similarly, in United States v. Gill, No. CR JKB-07-0149, 2023 WL 349844, at

*12 (D. Md. Jan. 20, 2023), the court concluded that second-degree murder under

Maryland law is not categorically a crime of violence because the Maryland murder

statute is indivisible and because “felony murder, ‘the most innocent conduct

criminalized by’ Maryland's murder statutes, ‘requires only the mens rea necessary

to attempt or complete the underlying felony (i.e., arson, escape, etc.).’ . . . Under

Maryland law, ‘a felony murder committed in the course of certain enumerated

felonies ... is murder in the first degree, notwithstanding the fact that the killing

may have been reckless or merely accidental.’ . . . ‘That mens rea is not more than

recklessness and thus, does not satisfy Borden.’” (citations omitted).

Thus, if Davis had been convicted in Maryland or in California of the same

federal VICAR murder, with a state law second-degree murder predicate, he could

not have been convicted for the use of a firearm causing death in violation of 18

U.S.C. § 924(j) because the second-degree murder offense would not have been an

acceptable crime of violence predicate. Yet, because he was prosecuted in New York,

he is serving an additional 30-year sentence for the use of a firearm causing death

in violation of New York’s second-degree murder statute. To avoid this inequitable

application of federal law, the Court should grant certiorari and clarify that the

generic, federal definition of murder should be applied in the VICAR crime of

violence analysis.

Further, because generic murder in the second degree may be committed

recklessly, this Court should remand Davis’ case for reconsideration and for further

proceedings in accordance with Borden v. United States, 141 S. Ct. 1817, 210 L. Ed.

2d 63 (2021).

III. To the Extent Differing Approaches Are Compatible with the

Statutory Text of 18 U.S.C. § 1959, the Rule of Lenity Compels

Application of the Generic Offense Definitions.

Lenity, a rule “‘perhaps not much less old than’ the task of statutory

‘construction itself,’” says “ambiguities about the breadth of a criminal statute

should be resolved in the defendant’s favor.” Davis, 139 S. Ct. at 2333 (quoting

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.)). See

also United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion)

(“[A]mbiguous criminal laws [should] be interpreted in favor of the defendants

subjected to them.”); Bifulco v. United States, 447 U.S. 381, 387 (1980) (the rule of

lenity applies to sentencing statutes as well as to offense elements).

There is no real ambiguity here – Congress has made clear that it intended

the generic federal offense definitions to be applied to the listed offenses in § 1959.

Nonetheless, the “time-honored” rule of lenity, United States v. Kozminski, 487 U.S.

931, 952 (1988), should be applied here. Lenity is founded on three tenets that have

“long been part of our tradition.” United States v. Bass, 404 U.S. 336, 348 (1971).

First, the rule of lenity enforces the requirement of “fair warning,” in “language that

the common world will understand,” of “what the law intends to do if a certain line

is passed.” Bass, 404 U.S. at 348 (quoting McBoyle v. United States, 283 U.S. 25, 27

(1931)). To ensure the warning is fair, “the line should be clear.” Id.; see also United

States v. Lanier, 520 U.S. 259, 266 (1997) (“[The] rule of lenity[] ensures fair

warning by so resolving ambiguity in a criminal statute as to apply it only to

conduct clearly covered.”).

Second, the rule “minimize[s] the risk of selective or arbitrary enforcement”

of criminal laws and penalties. Kozminski, 487 U.S. at 952. It does so by “fostering

uniformity in the interpretation of criminal statutes.” Bryan v. United States, 524

U.S. 184, 205 (1998) (Scalia, J., dissenting). Thus, the rule “generate[s] greater

objectivity and predictability” in applying criminal laws. Eskridge, Norms,

Empiricism, and Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671, 678679 (1999). This is likewise a fundamental goal of the judicial function more

generally. See Kansas v. Marsh, 548 U.S. 163, 183 (2006) (Scalia, J., concurring)

(“Our principal responsibility ... is to ensure the integrity and uniformity of federal

law.”).

Third, the rule holds that because the “seriousness of criminal penalties”

often represents the “moral condemnation” of the community, “legislatures and not

courts should define criminal activity.” Bass, 404 U.S. at 348. This policy embodies

“‘the instinctive distaste against men languishing in prison unless the lawmaker

has clearly said they should.’” Id. (quoting Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks 196, 209 (1967)); see also Davis, 139 S. Ct. at

2333 (“‘[T]he power of punishment is vested in the legislative, not in the judicial

department.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)). Accordingly, the rule

“maintain[s] the proper balance between Congress, prosecutors, and courts.”

Kozminski, 487 U.S. at 952; see Santos, 553 U.S. at 514 (plurality opinion) (The rule

of lenity “places the weight of inertia upon the party that can best induce Congress

to speak more clearly and keeps courts from making criminal law in Congress’s

stead.”).

As noted above, courts are engaged in making criminal law in Congress’

stead by interpreting 18 U.S.C. § 1959 to require analysis of more than just the

generic version of the offenses set forth therein. These decisions are contrary to

clearly expressed Congressional intent. More importantly, they have the effect of

broadening the application of § 924(j) and (c) to reach conduct that is outside the

scope of the Congressional directive. To “maintain the proper balance between

Congress, prosecutors, and courts,” Kozminski, 487 U.S. at 952, to “minimize the

risk of selective or arbitrary enforcement” of federal criminal laws and penalties, Id,

and to “foster[] uniformity in the interpretation of criminal statutes.” Bryan, 524

U.S. at 205 (Scalia, J., dissenting), the Court should hear Davis’ case and should

clarify that the generic federal definitions apply to the enumerated crimes within §

1959.

IV. This Case Presents a Strong Vehicle to Address the Issues

Identified Herein.

For his conviction on Count Two, Davis is serving a sentence of life

imprisonment. If this Court overturns his conviction on Count Three – the § 924(j)

conviction -- as lacking a sufficient crime of violence predicate, he will continue to

serve that life sentence. However, he will not be required to serve an additional 30year consecutive term for his violation of § 924(j).

The case clearly presents an instance in which the Second Circuit’s

interpretation of § 1959, in violation of Congress’ clearly stated intent, has resulted

in the uneven application of federal law. To stop the deepening circuit split and to

prevent the uneven application of federal law, this Court should grant the petition

and hear Davis’ case.

CONCLUSION

For the foregoing reasons, this Court should issue a writ of certiorari to

consider the questions raised herein.

Dated:

New York, NY

October 16, 2023

Respectfully submitted,

/s/ Richard H. Rosenberg