Opposition Brief — Acosta v. United States (No. 07-60)

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No. 07-60 =

SYLVESTRE ACOSTA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

RENA J. COMISAC

Acting Assistant Attorney

General

JESSICA DUNSAY SILVER

ANGELA M. MILLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

Sai eile lait. die el Ee

QUESTIONS PRESENTED

1. Whether a police officer who falsified search war-

rants, participated in illegal searches, and stole personal

property during the execution of the searches was pro-

perly convicted of depriving persons of their constitu-

tional rights, in violation of 18 U.S.C. 242.

2. Whether the district court constructively amend-

ed the indictment when it instructed the jury that peti-

tioner could be held liable on the charges against him

based on the foreseeable actions of his co-conspirators

taken in furtherance of the conspiracy.

3. Whether petitioner’s convictions for using or

carrying a firearm during and in relation to an eight-

year conspiracy to violate civil rights, and using or car-

rying a firearm during and in relation to two distinct

substantive civil rights violations during the time span

of the conspiracy, violated his double jeopardy rights.

4. Whether the district court committed reversible

plain error when it instructed the jury that, for purposes

of 18 U.S.C. 242, the “use, attempted use, or threatened

use of a dangerous weapon” means “having the dan-

gerous weapon available to assist or aid in the com-

mission of the act of depriving a constitutional right,”

and “brandish{ing], displayling], or referr[ing] to” the

weapon.

5. Wheth:r deprivation of rights involving the use,

attempted use, or threatened use of a dangerous weapon

in violation of 18 U.S.C. 242 is a crime of violence under

18 U.S.C. 924(c¢).

6. Whether conspiring to injure, oppress, threaten,

or intimidate persons in the exercise or enjoyment of

their constitutional rights in violation of 18 U.S.C. 241

constitutes a crime of violence under 18 U.S.C. 924(c).

(I)

TABLE OF CONTENTS

Page

SREP TT OTE See CTER ETL CCT TT rece 1

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a ih bee teks tein wba Ak ee ees Reae Ree eS Rok 2

eRe So ks ivalee epee ine oak does oe ee 6

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TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ........ 7

Bailey v. United States, 516 U.S. 137 (1995) .... 4,6, 12, 13

Hudson v. Palmer, 468 U.S. 517 (1984) ................ 6

Johnson v. United States, 520 U.S. 461 (1997) ........ 7,9

Leocal v. Ashcroft, 543 U.S. 1 (2004) .................. 4

Parratt v. Taylor, 451 U.S. 527 (1981) ................. 6

Pinkerton v. United States, 328 U.S. 640 (1946) ....... 3,9

United States v. Albert, 595 F.2d 283 (5th Cir. 1979) ..... 8

United States v. Alonso, 740 F.2d 862 (11th Cir. 1984),

cert. denied, 460 US. 1IGG (1985) .... 1.0 ee cece eeee 8

United States v. Cotton, 535 U.S. 625 (2002) ............ 8)

United States v. Galiffa, 734 F.2d 306 (7th Cir. 1984) ... 10

United States v. Greer, 939 F.2d 1076 (5th Cir. 1991),

cert. dented, 507 U.S. S42 (1908)... ce cece cece eee 15

United States v. Lanier, 520 U.S. 259 (1997) ........... 9g

United States v. McClean, 528 F.2d 1250 (2d Cir

UU ks sare ph cde y Eee aed RT e Seer eh eeewe 8

(ITI)

IV

Cases—Continued: Page

United States v. Olano, 507 U.S. 725 (1993) .......... 7,8

United States v. Pedigo, 12 F.3d 618 (7th Cir. 1993) ....

United States v. Roselli, 432 F.2d 879 (9th Cir. 1970),

cert. denied, 401 U.S. 924 (1971)... cece eee 10

United States v. Thirion, 813 F.2d 146 (8th Cir. 1987) .. 10

United States v. Washington, 106 F.3d 983 (D.C.

Cir.), cert. denied, 522 U.S. 984 (1997) ............. 10

United States v. Williams, 343 F.3d 423 (5th Cir.),

cert. denied, 540 U.S. 1093 (2003) ................. 15

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

SR So a in eR Oe ATE re ek Vos KS 7

Constitution, statutes and rule:

U.S. Const.:

SE sas 9 e556 o4a ened eee eka eee 3, 5,8

MTR 2p oa'd ed Noakes shou deR dae 3, 5, 6, 8, 9

OE oi stare scceres passim

RNS 56 sea ob ohh ee Aa Re passim

18 U.S.C. 924(c) (2000 & Supp. IV 2004) .......... passim

Se a IS ik ov orcs vk dS 5s pk ere Oe 13

soe ead ane eee wannes 13

OG te I | oo on viv eereus coves evaake ice

a aR Ee ane rey rere rs 15

ic As CE 6s eo v becca nd eks 64 ea ee ee eens 7

In the Supreme Court of the Aunited States

No. 07-60

SYLVESTRE ACOSTA, PETITIONER

vz.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

reported at 470 F.3d 132. The companion summary or-

der of the court of appeals (Pet. App. 10-19) is not pub-

lished in the Federal Reporter but is reprinted in 207

Fed. Appx. 39.

JURISDICTION

The judgment of the court of appeals was entered on

November 30, 2006. A petition for rehearing was denied

on February 13, 2007 (Pet. App. 37-38). The petition for

a writ of certiorari was filed on May 14, 2007. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Western District of New York, petitioner

was convicted of conspiracy to injure, threaten, or intim-

idate persons in their exercise of federally protected

rights, in violation of 18 U.S.C. 241; deprivation of civil

rights under color of law, in violation of 18 U.S.C. 242;

and use of a firearm during and in relation to the com-

mission of a crime of violence, in violation of 18 U.S.C.

924(c).’ He was sentenced to imprisonment for 45 years

and one day, to be followed by three years of supervised

release. The court of appeals affirmed. Pet. App. 1-19.

1. Between 1989 and 2001, petitioner was a police

officer assigned to various units combating drug traffic

in the lower west side of Buffalo, New York. During

that time, petitioner and other Buffalo narcotics officers

entered into a scheme to steal money and property from

suspects. They accomplished their objective by obtain-

ing search warrants on the basis of false information,

which they incorrectly attributed to reliable informants,

and covering up the practice by falsifying fund disburse-

ment forms to suggest that the informants had been

paid for providing information when they had not actu-

ally done so. After executing the warrants, they stole

money and property from the suspects and divided the

stolen goods amongst themselves. Pet. App. 13; Gov’t

C.A. Br. 6-12.

During the execution of any search warrant, it was

standard police procedure for the officers to have their

weapons drawn and ready to fire. Pet. App. 14; Gov’t

C.A. Br. 11. On at least two occasions, members of the

' All references to 18 U.S.C. 924(c) are to 18 U.S.C. 924(c) (2000 &

Supp. IV 2004).

3

searcht — > fired their weapons during the execution of

the searvi.. /d. at 15, 17, 38.

Petitioner’s participation in the scheme was not lim-

ited to taking property after executing falsified search

warrants. Petitioner and his co-conspirators threatened

an informant by sticking a gun in his mouth and forcing

him to provide additional leads for future drug raids

during which they could steal additional money and

property, and petitioner once stole money from a sus-

pect during a traffic stop. Gov’t C.A. Br. 12-138, 29.

2. Petitioner was indicted on one count of conspiracy

to deprive individuals of their Fourth and Fourteenth

Amendment rights, one misdemeanor and two felony

counts of deprivation of civil rights under color of law,

and three counts of using a firearm during and in rela-

tion to the commission of a crime of violence. The three

firearm counts corresponded to the conspiracy count

and the two felony counts of violation of 18 U.S.C. 242.

Pet. App. 43-48. Petitioner was convicted on all counts.

Id. 20-21.

3. On appeal, petitioner raised, among other chal-

lenges, several objections to his conviction for viola-

tion of 18 U.S.C. 242. First, petitioner contended (Pet.

C.A. Br. 22-30) that the indictment was invalid because

a police officer’s unauthorized theft of private property

does not, as the indictment charged, constitute a depri-

vation of due process of law. Second, petitioner claimed

(id. at 30-39) that the district court had constructively

amended the indictment by instructing the jury that

petitioner could be found guilty of the charged substan-

tive civil rights violations if the jury determined that any

of his co-conspirators had engaged in those acts in fur-

therance of the conspiracy. See Pinkerton v. United

States, 328 U.S. 640 (1946). Finally, petitioner argued

4

(Pet. C.A. Br. 43-47) that the district court erred when

it instructed the jury that, for purposes of petitioner’s 18

U.S.C. 242 charges, using, attempting to use, or threat-

ening the use of a dangerous weapon means “having the

dangerous weapon available to assist or aid in the com-

mission of the act of depriving a constitutional right.”

12/10/04 Trial Tr. 1625. Petitioner claimed that the in-

struction was inconsistent with this Court’s interpreta-

tion of the term “use” as it is employed in 18 U.S.C.

924(c). See Bailey v. United States, 516 U.S. 137 (1995).

Petitioner also raised a number of objections to his

firearm convictions under 18 U.S.C. 924(c), asserting

that (1) his Section 924(c) conviction relating to the con-

spiracy charge was invalid on double jeopardy grounds,

and (2) 18 U.S.C. 241 and are not crimes of violence that

ean support Section 924(c) charges. Pet. C.A. Br. 39-41,

47-61.

4. The court of appeals affirmed. Pet. App. 1-9, 10-

19. In a published per curiam opinion (id. at 1-9), the

court of appeals rejected petitioner’s claims that

18 U.S.C. 241 and 242 are not crimes of violence within

the meaning of 18 U.S.C. 924(¢c). Applying a categorical

approach, see e.g., Leocal v. Ashcroft, 543 U.S. 1 (2004),

the court concluded that petitioner’s violation of 18

U.S.C. 242 qualifies as a crime of violence because he

had been charged with, and the jury had found him

guilty of, the felony version of that offense requiring

“the use, attempted use, or threatened use of a danger-

ous weapon” in connection with the offense. Pet. App.

7. The court also concluded that 18 U.S.C. 241, which

proscribes conspiracies that seek to “injure, oppress,

threaten, or intimidate any person * * * in the free

exercise or enjoyment” of a constitutional right, is an

offense that, by its nature, “involves a substantial risk

5

that physical force will be used.” Pet. App. 8 (internal

quotation marks and citation omitted).

The court disposed of petitioner’s remaining argu-

ments in an unpublished order. Pet. App. 10-19. The

court rejected petitioner’s argument that the indictment

did not properly allege violations of Section 242 based on

a violation of the Fourteenth Amendment. /d. at 14-15.

Applying plain-error review and relying on circuit pre-

cedent, the court held that officers violate the Four-

teenth Amendment when they use their official positions

to steal property from targets of their investigations.

Id. at 15. The court further held that the indictment

stated a violation of 18 U.S.C. 242 because it also alleged

that petitioner deprived persons of their Fourth Amend-

ment right to be free from illegal searches and seizures.

Pet. App. 15.

The court also rejected petitioner’s claim that the

district court’s Pinkerton charge constructively amen-

ded the indictment by allowing the jury to convict peti-

tioner for the substantive crimes committed by his co-

conspirators. The court reasoned that petitioner was

charged with conspiring with others to violate persons’

constitutional rights and actually depriving persons

of their constitutional rights, and that the Pinkerton

charge “did not subject [petitioner] to liability for any

crime other than §242, it merely supplied another basis

on which liability for this offense might be determined.”

Pet. App. 17. The court also noted that there was, in any

event, sufficient evidence for the jury to convict the peti-

tioner as a principal or aider and abettor. /bid.

The court also rejected petitioner’s claim, raised for

the first time on appeal, that the district court’s instruc-

tions concerning the meaning of the word “use” under 18

U.S.C. 242 were inconsistent with this Court’s interpre-

6

tation of 18 U.S.C. 924(c) in Bailey, 516 U.S. 137. In

finding the absence of plain erroi, the court explained

that no authority exists for the proposition that the

terms “use” under Sections 242 and 924(c) have the

same meaning, and that, in any event, the district court’s

“use” instructions in the portion of the charge concern-

ing Section 242 were consistent with its instructions con-

cerning Section 924(c). Pet. App. 18.

The court rejected petitioner’s argument, also raised

for the first time on appeal, that he was subject to dou-

ble jeopardy because he was convicted of violating 18

U.S.C. 924(c) for having used or carried a firearm dur-

ing and in relation to his 18 U.S.C. 241 conspiracy con-

viction, as well as being convicted of separate Section

924(c) violations based on the 18 U.S.C. 242 substantive

civil rights violations that occurred during the conspir-

acy. The court explained that the conspiracy charge

encompassed broader conduct than just the two substan-

tive civil rights offenses, and the jury could reasonably

have found petitioner guilty for using a firearm during

that broader conduct. Pet. App. 16-17.

ARGUMENT

1. Petitioner argues (Pet. 10-15) that the district

court committed reversible error by instructing the jury

that a police officer who steals private property under

color of law has deprived his victim of property without

due process of law in violation of the Fourteenth Amend-

ment, and therefore may be found guilty of violating 18

U.S.C. 242. Petitioner contends that, under this Court’s

decision in Parratt v. Taylor, 451 U.S. 527 (1981), and

Hudson v. Palmer, 468 U.S. 517 (1984), the officer does

not violate the Fourteenth Amendment unless and until

the State provides or refuses to provide a remedy for

7

the victim’s loss. Petitioner’s argument does not war-

rant this Court’s review.

a. As a threshold matter, review should be denied

because petitioner’s challenge to the jury instructions

was neither pressed nor passed on below. In the court

of appeals, petitioner invoked Parratt and Hudson only

to argue that the indictment failed to state an actionable

offense. Pet. C.A. Br. 22-29. That was the argument to

which the government responded in its brief (Gov't C.A.

Br. 41-45), and that was the argument the court of ap-

peals addressed in its unpublished opinion (Pet. App. 14-

15). Although petitioner mentioned the jury instructions

in passing, he did not identify the adequacy of the in-

structions as a matter for the court of appeals to resolve.

Pet. C.A. Br. 24-25. The issue therefore is not properly

presented for this Court’s review. See Adickes v. S.H.

Kress & Co., 398 U.S. 144, 147 n.2 (1970) (“Where issues

are neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.”);

accord Zobrest v. Catalina Foothills Sch. Dist., 509 U.S.

1, 8 (1993).

b. Even had petitioner raised the argument in the

court of appeals, the claim would be reviewable only for

plain error, as he made no objection in the district court.

See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 732-733 (1993). Under the plain-error stan-

dard, petitioner would be entitled to relief only if he

could show a clear or obvious error that both affected

his substantial rights and seriously affected the fairness,

integrity, or public reputation of the proceedings. John-

son v. United States, 520 U.S. 461, 466-467 (1997). Peti-

tioner cannot satisfy that standard.

The district court committed no clear or obvious er-

ror when it instructed the jury that a police officer who

8

steals money or property under color of law violates the

due process rights of his victims. The district court’s

instruction was consistent with the decisions of numer-

ous courts of appeals that have upheld 18 U.S.C. 242

convictions for willful deprivation of due process rights

in cases in which state officials stole money or property

under color of law. See United States v. Alonso, 740

F.2d 862, 872-873 & n.8 (11th Cir. 1984), cert. denied,

469 U.S. 1166 (1985); United States v. Albert, 595 F.2d

283, 285 (5th Cir. 1979); United States v. McClean, 528

F.2d 1250, 1255-1256 (2d Cir. 1976). Petitioner can cite

no criminal case in which a court of appeals has reached

a contrary conclusion to that authority. Thus, even if

Parratt and Hudson cast doubt on those cases, the dis-

trict court did not commit “obvious” error. Olano, 507

USS. at 734.

ce. Petitioner would not be entitled to relief even if

the jury instructions concerning the Fourteenth Amend-

ment were clearly erroneous. Petitioner was charged

with violating 18 U.S.C. 242 by depriving persons of

rights guaranteed by the Fourth Amendment, as well as

the Fourteenth Amendment. Petitioner does not dis-

pute that, as the district court instructed the jury, a po-

lice officer acting under color of law violates the Fourth

Amendment when he: (1) obtains a search warrant based

on information he knows to be false; (2) seizes property

without a warrant; or (3) seizes property “without legiti-

mate law enforcement purpose.” 12/10/04 Trial Tr. 1616.

If the jury found a defendant guilty of taking money or

property from an individual and converting it to his own

use, in accordance with the judge’s instructions on the

procedural due process theory, 7d. at 1616-1618, then it

also necessarily found that defendant guilty of seizing

money or property “without legitimate law enforcement

9

purpose” under the Fourth Amendment instructions.

And the evidence overwhelmingly established that peti-

tioner’s co-conspirators falsified warrants, knowingly

executed illegal searches, and took suspects’ property in

furtherance of the conspiracy. As a member of the con-

spiracy, petitioner is liable for those acts under

Pinkerton v. United States, 328 U.S. 640 (1946). See pp.

9-10, infra. Petitioner thi 3 cannot establish that any

error with respect to the Fourteenth Amendment in-

structions affected his substantial rights or seriously

affected the fairness of the proceedings. Cf. Johnson,

520 U.S. at 467; United States v. Cotton, 535 U.S. 625,

633 (2002).

d. Petitioner argues in the alternative that he had no

“fair warning” of the range of conduct forbidden by 18

U.S.C. 242, and thus should be accorded “good faith im-

munity” from prosecution. Pet. 15 (citing United States

v. Lanier, 520 U.S. 259, 270 (1997)). Petitioner’s argu-

ment lacks merit. It is clearly established that search-

ing suspects on the basis of false warrants and stealing

property from them violates the suspects’ constitutional

rights, and petitioner thus had fair warning that his con-

duct subjected him to liability under 18 U.S.C. 242. See

Lanier, 520 U.S. at 270.

2. Petitioner argues (Pet. 15-20) that the district

court constructively amended the indictment by in-

structing jurors (12/10/04 Trial Tr. 1640-1641) that he

could be held responsible for the substantive civil rights

violations committed by his co-conspirators if those

crimes were reasonably foreseeable consequences of

acts committed in furtherance of the conspiracy. See

Pinkerton, 328 U.S. 640. The court of appeals correctly

concluded that the Pinkerton charge did not construc-

tively amend the indictment, and its unpublished ruling

10

does not conflict with any decision of this Court or of any

other court of appeals. This Court’s review of this issue

is therefore not warranted.

As the court of appeals noted (Pet. App. 17), the in-

dictment clearly charged petitioner with both substan-

tive violations of 18 U.S.C. 242 and conspiracy to deprive

individuals of constitutional rights under 18 U.S.C. 241.

See Pet. App. 43-47. And, as the court of appeals cor-

rectly concluded, “[t]he Pinkerton charge did not sub-

ject [petitioner] to liability for any crime other than

§ 242, it merely supplied another basis on which liability

for this offense might be determined.” Jd. at 17. The

courts of appeals have uniformly agreed that Pinkerton

liability need not be charged in the indictment before

the jury may receive a Pinkerton instruction, as an in-

dictment need not “contain the specific theory of law

which the prosecution intends to use in its attempt to

convict the defendant.” United States v. Galiffa, 734

F.2d 306, 314 (7th Cir. 1984); see United States v. Wash-

ington, 106 F.3d 983, 1011 (D.C. Cir.), cert. denied, 522

U.S. 984 (1997); United States v. Thirion, 813 F.2d 146,

152 (8th Cir. 1987); United States v. Roselli, 432 F.2d

879, 894-895 & n.27 (9th Cir. 1970), cert. denied, 401

U.S. 924 (1971).

Contrary to petitioner’s assertion (Pet. 18-20), the

court of appeals’ decision creates no conflict with United

States v. Pedigo, 12 F.3d 618 (7th Cir. 1993). In Pedigo,

the defendant was charged with (1) one count of posses-

sion of marijuana with intent to distribute; (2) knowingly

using a firearm during and in relation to that substan-

tive offense; and (3) conspiring with others to distribute

marijuana. Even though the indictment, on its face, per-

mitted conviction on the firearm charge only upon a

finding that a firearm was used during and in relation to

11

the substantive offense, the district court nevertheless

instructed the jury that the defendant could be found

liable on the firearm charge if his co-conspirator used a

firearm in furtherance of the conspiracy. The Seventh

Circuit held that this was error. /d. at 631. In this case,

by contrast, the Pinkerton charge directly tracked the

substantive offenses and conspiracy charge contained in

the indictment.

In any event, the question is of limited significance in

this case, since, as the court of appeals held, “there was

sufficient evidence to support a rational jury finding that

[petitioner] himself engaged in the criminal violation of

civil rights under § 242.” Pet. App. 17.

3. Petitioner contends (Pet. 20-21) that his conviction

for using or carrying a firearm during or in relation to

the conspiracy to deprive persons of their constitutional

rights may have been duplicative of his convictions for

using or carrying a firearm during or in relation to the

two substantive rights violations, and should therefore

have been dismissed on double jeopardy grounds. Peti-

tioner’s argument is without merit.

Petitioner did not preserve his objection before the

district court, nor did he request a jury instruction that

would limit the jury’s consideration of the conduct that

would support the firearms conviction he now chal-

lenges. Pet. App. 16. As the court of appeals correctly

held, the district court committed no reversible error.

Ibid. As the court of appeals observed, “the conspiracy

involved broader conduct than the substantive [Section

242] offenses].” Jd. at 16-17. The jury heard evidence

that petitioner joined in a conspiracy to deprive persons

of their civil rights over several years, including inci-

dents that did not form the basis for the substantive

violations, during which firearms were used. The court

12

of appeals correctly concluded that the jury “could have

reasonably convicted on this conduct.” /d. at 17.

4. Petitioner asserts (Pet. 21-23) that the district

court committed reversible plain error when it instruct-

ed the jury that the “use, attempted use or threatened

use of a dangerous weapon” within the meaning of 18

U.S.C. 242 encompasses “having the dangerous weapon

available to assist or aid in the commission of the act

of depriving a constitutional right.” 12/10/04 Trial Tr.

1625. Petitioner contends that this instruction is incon-

sistent with this Court’s holding in Bailey, 516 U.S. 137.

The court of appeals correctly rejected that contention

in its unpublished opinion, and its judgment does not

warrant further review.

As the court of appeals noted (Pet. App. 18), the dis-

trict court’s instruction concerning the “use” of a wea-

pon under Section 242 did not end with “having the dan-

gerous weapon available to assist or aid in the commis-

sion of the act of depriving a constitutional right.” The

district court further instructed the jury that it should

find this element of the offense satisfied “if the danger-

ous weapon was brandished, displayed, or referred to by

the defendant so that the others present knew that the

weapon was available if needed during the commission

of the deprivation of a constitutional right.” 12/10/04

Trial Tr. 1626.

Considering the meaning of the statutory term “use”

for purposes of 18 U.S.C. 924(c), this Court held in

Bailey that “use” “requires evidence sufficient to show

an active employment of the firearm by the defendant.”

516 U.S. at 143. But the Court further noted that “(t]he

active-employment understanding of ‘use’ certainly in-

cludes brandishing, displaying, bartering, striking with,

and, most obviously, firing or attempting to fire a fire-

13

arm. * * * [A] reference to a firearm calculated to

bring about a change in the circumstances of the predi-

cate offense is a ‘use,’ just as the silent but obvious and

forceful presence of a gun on a table can be a‘use.”” /d.

at 148 (emphasis added).

Assuming the term “use” carries the same meaning

in 18 U.S.C. 242 as it does in 18 U.S.C. 924(¢), the dis-

trict court’s instructions, taken as a whole, are consis-

tent with Bailey’s “active employment” definition of

“use.” Under Bailey, brandishing, displaying, and re-

ferring to a firearm are all “uses” within the meaning of

the statute. The district court did not err when it so

instructed the jury.

5. Finally, petitioner contends (Pet. 23-30) that nei-

ther a deprivation of rights under color of law (18 U.S.C.

242) nor a conspiracy to deprive a person of rights (18

U.S.C. 241) can qualify as a predicate “crime of violence”

for a conviction under 18 U.S.C. 924(c). The court below

correctly rejected that contention, and its ruling does

not conflict with any decision of this Court or of any

other court of appeals. This Court’s review of the issue

is therefore not warranted.

Section 924(c) proscribes using or carrying a firearm

“during and in relation to any crime of violence.” 18

U.S.C. 924(c)(1)(A). The statute defines “crime of vio-

lence” as a felony that (1) “has as an element the use,

attempted use, or threatened use of physical force ag-

ainst the person or property of another,” or (2) “that by

its nature, involves a substantial risk that physical force

against the person or property of another may be used

in the course of committing the offense.” 18 U.S.C.

924(c)(3).

a. Section 242 makes it an offense punishable by not

more than one year in prison when any person under

14

color of law willfully deprives a person of his constitu-

tional or statutory rights. The following clause of the

provision further provides that, if “bodily injury results

from the acts committed in violation of this section or if

such acts include the use, attempted use, or threatened

use of a dangerous weapon, explosives, or fire,” the de-

fendant shall be fined, imprisoned for a term of not more

than ten years, or both. 18 U.S.C. 242.

Petitioner claims (Pet. 27-28) that the additional ele-

ments described in the second clause of 18 U.S.C. 242

do not render the offense a “crime of violence” because

“bodily injury” may result even without the use of force.

Petitioner, however, was not charged with acts resulting

in bodily injury. The indictment specifically charged

petitioner with willfully stealing property “through

the use, attempted use, and threatened use of a danger-

ous weapon.” Pet. App. 44-45. The jury was instructed

that the government was required to prove beyond a

reasonable doubt that petitioner “used, or attempted to

use, or threatened to use the use of a dangerous wea-

pon.” 12/10/04 Trial Tr. 1625. And the jury indicated on

the verdict form that it found petitioner guilty “on

the offense of deprivation of civil rights under color of

law through use of a dangerous weapon.” Jury Verdict

Form 2-3.

As the court of appeals correctly concluded (Pet.

App. 7-8), where, as here, a defendant is charged with

violating 18 U.S.C. 242 through “the use, attempted use,

or threatened use of a dangerous weapon,” 18 U.S.C.

242, the offense includes as an element “the use, at-

tempted use, or threatened use of physical force,” 18

U.S.C. 924(c)(3)(A). In those circumstances, the Section

242 violation constitutes a predicate “crime of violence”

for Section 924(c) charges. The only other court of ap-

15

peals to have considered the issue has reached the same

conclusion. United States v. Williams, 343 F.3d 423, 434

(5th Cir.), cert. denied, 540 U.S. 1093 (2003).

b. The court of appeals also correctly concluded that

a conspiracy to deprive citizens of their civil rights in

violation of 18 U.S.C. 241 qualifies as a predicate “crime

of violence” for purposes of 18 U.S.C. 924(c) charges.

Section 241 proscribes conspiring “to injure, oppress,

threaten, or intimidate” a person in the “free exercise or

enjoyment” of any federal right or privilege.

Petitioner asserts (Pet. 25-26) that because a person

may violate Section 241 without using force, it cannot be

a “crime of violence” for purposes of Section 924(c). Pe-

titioner supports its contention by identifying cases from

this Court in which Section 241 (or its precursor) was

violated without use of physical force violence. Pet. 25-

26. This argument, however, ignores the plain language

of Section 924(c), which identifies crimes of violence as

those that, by their nature, involve “a substantial risk”

that physical force may be used, not a guaranteed risk.

18 U.S.C. 924(c)(3)(B) (emphasis added). As the court of

appeals explained (Pet. App. 8), because “applying phys-

ical force is perhaps the most obvious way to injure,

threaten, or intimidate, a conspiracy to engage in such

conduct is, by its nature, a conspiracy that involves a

‘substantial risk that physical force’ will be used.” The

only other court of appeals to consider the issue reached

the same conclusion. United States v. Greer, 939 F.2d

1076, 1099 (5th Cir. 1991), cert. denied, 507 U.S. 962

(1993).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

RENA J. COMISAC

Acting Assistant Attorney

General

JESSICA DUNSAY SILVER

ANGELA M. MILLER

Attorneys

OCTOBER 2007