Monday, June 28th, 2021

Second Circuit Vacates 18 U.S.C. § 924(c) Conviction Based On Both Valid And Invalid Predicate Offenses.

In United States v. Heyward, the Circuit (Wesley, joined by Pooler and Carney), the Second Circuit vacated an 18 U.S.C. § 924(c) conviction that was based on both valid and invalid predicate offenses.

Heyward was convicted following a jury trial of three counts: (1) racketeering conspiracy, 18 U.S.C. § 1962(d); (2) drug conspiracy, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (3) possessing/aiding and abetting the possession of a firearm during and in relation to either the Count One racketeering conspiracy or the Count Two drug conspiracy. By special verdict, the jury found that the pattern of racketeering activity supporting the Count One conviction encompassed both murder conspiracy and drug conspiracy. In addition, the jury found that the firearm possessed in Count Three was discharged in furtherance of the Count One racketeering conspiracy, but not the Count Two drug conspiracy. The district court (Englemayer, SDNY) sentenced Heyward to 120 months concurrent on Counts One and Two, and 120 months consecutive on Count Three.

On appeal, Heyward argued that murder conspiracy was not a § 924(c) crime of violence in light of United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), and sought vacatur of Count Three given the possibility that the jury had based that conviction on the invalid murder conspiracy predicate rather than the valid drug conspiracy predicate. The Circuit agreed: “[T]he record, verdict sheet, and jury instructions together admit of the significant possibility that Heyward’s firearms conviction was based on the now-invalidated residual clause definition of crime of violence.”

The Circuit began from the premise that “[g]iven the disjunctive nature of the verdict’s sheet’s Count Three prompt, the conviction can be valid only if both Count One (racketeering conspiracy) and Count Two) narcotics conspiracy remain qualifying predicates.” The Circuit then concluded that of the two predicates for the Count One racketeering conspiracy, the murder conspiracy was invalid while the drug conspiracy was valid. The government contended that the § 924(c) conviction should be affirmed because the murder and drug conspiracies were “inextricably intertwined,” but the Circuit disagreed.

First, the Circuit noted a “distinct factual separation” between the racketeering enterprise’s acts of violence and its drug activity; the jury could reasonably have concluded that the firearms possession and discharging proved at trial related to gang conflicts, not drug trafficking. Second, the jury had specifically found that a firearm was discharged in connection with the racketeering conspiracy but not the drug conspiracy, and the government had conceded, on that basis, that the § 924(c)(1)(A)(iii) discharging enhancement had to be vacated. In the Circuit’s view, this meant that acts undertaken to further the enterprise’s violent activity did not necessarily further its drug activity. Third, the district court’s jury instructions had repeatedly described the Count One racketeering conspiracy as a “crime of violence” rather than a “drug trafficking crime.” In light of these instructions, the Circuit determined that the jury understood Count One to be a crime of violence, not a drug trafficking crime; by finding that a firearm had been discharged in furtherance of the Count One racketeering conspiracy but not the Count Two drug conspiracy, the jury presumably meant to convict Heyward of discharging a firearm only in connection with the now-invalid crime of violence predicate.

Accordingly, because the § 924(c) conviction “may very well have been premised on an unconstitutionally vague provision,” the Circuit held that the conviction was plain error requiring vacatur. The Circuit distinguished last week’s decision in United States v. Eldridge, ___ F.3d ___, 2021 WL 2546175 (2d Cir. June 22, 2021), which had affirmed a dual-predicated § 924(c) conviction, on the ground that in Eldridge, it was “overwhelmingly likely” that a properly instructed jury would have convicted based on the valid predicate alone.

In light of that holding, the Circuit once again reserved the question “whether a single racketeering conspiracy encompassing both qualifying and non-qualifying offenses under § 924(c) is itself automatically a qualifying offense.” See also United States v. Martinez, 991 F.3d 347, 356 (2d Cir. 2021) (reserving same question).


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Categories: 924(c), racketeering
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