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United States v. Robinson

United States District Court, E.D. New York

November 1, 2017

UNITED STATES OF AMERICA
v.
TYRONE ROBINSON, Defendant.

          United States Attorney's Office for the Eastern District of New York, Allen Lee Bode, Assistant United States Attorney

          Law Office of Kevin J. Keating Attorney for the Defendant, Kevin James Keating, Esq., of Counsel

          MEMORANDUM OF DECISION AND ORDER

          ARTHUR D. SPATT, United States District Judge

         On March 15, 2017, the Defendant Tyrone Robinson (the “Defendant”) was charged in a superseding indictment with thirty-two counts relating to nine gunpoint robberies and attempted robberies that occurred in Nassau County, as well as accompanying conspiracy and firearm charges.

         Presently before the Court are several motions by the Defendant: to dismiss the alleged violations of 18 U.S.C. § 924(c) for failure to state a claim; to suppress statements made by the Defendant during a videotaped interrogation; to sever or bifurcate the counts alleging violation of 18 U.S.C. § 922(g) from the other counts; to compel election between multiplicitous conspiracy counts; to suppress a police officer identification; to suppress evidence recovered from the Defendant's residence by NYS parole officers pursuant to a parole arrest warrant on June 10, 2016; and to suppress all evidence recovered pursuant to the execution of a search warrant on July 8, 2016.

         For the following reasons, the Court grants the Defendant's motion to bifurcate the felon-in-possession counts from the other counts; as well as his motion for a suppression hearing regarding the seizure of his cellular phone during the execution of the parole arrest warrant on June 10, 2016. The Defendant's remaining motions are denied.

         I. BACKGROUND

         A. Procedural Background

         On October 9, 2016, the Government filed a complaint against the Defendant charging the Defendant with alleged violations of 18 U.S.C. § 1951(a), Hobbs Act robbery, and 18 U.S.C. § 924(c), use of a firearm in furtherance of a crime of violence.

         On January 11, 2017, the Government filed a 22-count indictment against the Defendant.

         On March 15, 2017, the Government filed a 32-count superseding indictment charging the Defendant with multiple counts of Hobbs Act robbery, Hobbs Act attempted robbery, and Hobbs Act robbery conspiracy, 18 U.S.C. §§ 1951(a), 2 and 3551 et seq.; brandishing one or more firearms during crimes of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 2 and 3551 et seq.; possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 3551 et seq.; discharging one or more firearms during crimes of violence, 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 924(c)(1)(C)(i), 2 and 3551 et seq.; firearm-related murder, 18 U.S.C. §§ 924(j)(1), 2 and 3551 et seq.; and possession of ammunition by a felon, 18 U.S.C. §§ 922(g)(1), 924(A)(2) and 3551 et seq..

         On May 8, 2017, the Defendant filed the instant motions, and he supplemented his motions on September 22, 2017.

         B. The Relevant Facts

         The indictment alleges that the Defendant was involved in numerous home invasions, and that he possessed a firearm on a number of occasions. As not all facts are relevant to the instant motions, the Court will state the relevant facts when they are necessary to the determination of the specific motion.

         II. DISCUSSION

         A. As to the Defendant's Motion to Dismiss the Alleged Violations of 18 U.S.C. § 924(c)

         The Defendant contends that all alleged violations of 18 U.S.C. §924(c) (“Section 924(c)”) must be dismissed because Hobbs Act robbery does not qualify as a crime of violence under Section 924(c). The Court finds that the Second Circuit has explicitly ruled that Hobbs Act robbery is a crime of violence as defined in Section 924(c), and that the Court is therefore constrained to follow that precedent.

         Section 924(c)(1)(A) provides, in pertinent part:

[A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . .
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c). A “crime of violence” is defined as:

[A]n offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. at § 924(c)(3)(A)-(B).

         The superseding indictment indicates that the crime(s) of violence which form the basis of the Defendant's alleged Section 924(c) violations are the numerous robberies and attempted robberies committed in violation of 18 U.S.C. § 1951(a).

         Section 1951(a) states that:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). The same section defines robbery as:

[T]he unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining . . . .

Id. at § 1951(b).

         As the Defendant admits, the Second Circuit ruled in United States v. Hill, 832 F.3d 135 (2d Cir. 2016) that “Hobbs Act robbery ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another, '” id. at 144 (quoting 18 U.S.C. § 924(c)(3)(A), and therefore qualifies as a crime of violence under that statute. The Circuit further stated that “[e]ven if Hobbs Act robbery did not qualify as a crime of violence pursuant to § 924(c)(3)(A), such a robbery unequivocally qualifies as a crime of violence pursuant to § 924(c)(3)(B) because it, ‘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.'” Id. at 145 (quoting 18 U.S.C. § 924(c)(3)(B). The Hill Court explicitly rejected many of the arguments raised by the Defendant here, including that the “substantial risk of force” clause contained in Section 924(c)(3)(B) is void for vagueness in light of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (“Johnson II”) (2015). In Johnson II, the Supreme Court found that the residual clause of the Armed Career Criminal Act violated the Constitution's guarantees of due process by being unconstitutionally vague.

         As to the defendant's argument in Hill that Section 924(c)(3)(B) should also be held unconstitutionally vague, the Second Circuit stated that:

[T]he Supreme Court's explanation for its conclusion in Johnson II renders that case inapplicable to the risk-of-force clause at issue here. Section 924(c)(3)(B) does not involve the double-layered uncertainty present in Johnson II. . . . Assessing whether a felony, by its nature, poses a substantial risk that “physical force against the person or property of another may be used in the course of committing the offense, ” § 924(c)(3)(B), however, is a far narrower and simpler undertaking than divining whether a felony, not being one of four enumerated, but disparate crimes, “otherwise involves conduct that presents a serious potential risk of physical injury to another, ” § 924(e)(2)(B)(ii).

Hill, 832 F.3d at 146; see also Diaz v. United States, No. 14-CR-442 (JMF), 2017 WL 112609, at *2 (S.D.N.Y. Jan. 11, 2017) (stating that “the ‘risk-of-force clause'” in Section 924(c)(3)(B) “remains constitutional despite the Supreme Court's decision in [Johnson II] (citing Hill, 832 F.3d at 146)); United States v. Conyers, No. S13 15-CR-537 (VEC), 2016 WL 7189850, at *4 (S.D.N.Y. Dec. 9, 2016) (“[T]he Second Circuit has held that Hobbs Act Robbery is a crime of violence under Section 924(c).” (citing Hill, 832 F.3d at 137)); United States v. Biba, 219 F.Supp.3d 347, 354 (E.D.N.Y. 2016) (denying defendant's motion on similar grounds by following Hill, and finding that “a conspiracy to commit Hobbs Act robbery is a crime of violence”).

         This Court is bound by the Second Circuit's decision in Hill, unless and until the Second Circuit or the United States Supreme Court overrules it.

         Therefore, the Court finds that Hobbs Act robbery constitutes a crime of violence under Sections 924(c)(3)(A) and 924(c)(3)(B). Accordingly, the Defendant's motion to dismiss those counts is denied.

         B. As to the Defendant's Motion to Suppress Videotaped Statements

         The Defendant moves to suppress videotaped statements that he made to an agent of the Bureau of Alcohol, Tobacco, and Firearms (the “ATF”), because he argues that his Miranda waiver was not knowing, intelligent, and voluntary. The Government states that that it “does not intend to introduce [the Defendant's] statements . . . in its case-in-chief, ” but that it “reserve[s] the right to use the statements to impeach [the Defendant] if he takes the witness stand.” (Gov't Omnibus Resp. to Def.'s Mots. (ECF No. 69) (“Gov't Opp.”) at 10).

         Accordingly, the Defendant's motion to suppress the videotaped statements is denied as moot. See United States v. Mouzon, No. 16 CR 284 (CM), 2016 WL 7188150, at *1 (S.D.N.Y. Dec. 2, 2016) (“[T]he Government says that it ‘does not intend to use the defendant's statements in its case-in-chief.' Accordingly, defendant's motion to suppress his statements is moot . . . .”); United States v. Jackson, 548 F.Supp.2d 24, 26 (W.D.N.Y. 2008) (same).

         C. As to the Defendant's Motion to Sever or Bifurcate the ...


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