Monday, August 5th, 2019

Second Circuit Throws Out § 924(c) Conviction Linked to Conspiracy . . . And Does Other Good Things, Including as to Rehaif

In today’s United States v. Watkins, the Second Circuit (Jacobs, Pooler, Wesley) vacated a conviction for violating 18 U.S.C. § 924(c) in relation to a conspiracy to commit Hobbs Act robbery.  Because § 924(c)’s residual clause is “unconstitutionally vague,” United States v. Davis, 139 S. Ct. 2319, 2336 (2019), a “crime of violence” under § 924(c) is limited to an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Because a conspiracy never fits that bill, “Watkins’s section 924(c)(1)(A) conviction” — and all others based on conspiracy — “must be vacated.”

And in United States v. Prado, the court (Leval, Pooler, Hall) threw out more convictions, this time under the Maritime Drug Law Enforcement Act.  The Coast Guard had intercepted a speed boat in international waters, found three men aboard with lots of cocaine, arrested everyone, and then set the boat on fire and sank it.  The Coast Guard neglected, however, to ascertain if it had authority to do any of this.  The MDLEA extends to a case like this only if the boat is stateless, and the Coast Guard never bothered to inquire or determine if the speed boat was stateless.  And having destroyed the craft, it became impossible to answer that question.  Thus the convictions go overboard.

There’s useful stuff in the opinion, both for defending against MDLEA charges and otherwise:

1. The court recognized that the government can and does lie.  Though the government had claimed the speed boat was “not flying any flag,” the defendants put in affidavits saying the Ecuadorian flag was on the side of the hull, and the court said this was “corroborated by a video made by the Coast Guard boarding party.”  Op. at 6.  It’s troubling the government would even make a claim its own video contradicts, but encouraging that the court called this out.

2. The court rejected the government’s claim that the defendants’ challenges to their guilty pleas were barred because of the oft-quoted (and wrong) line that “a guilty plea waives all defects except to the court’s jurisdiction.”  The court reaffirmed that this general principle “applies only to valid guilty pleas.”  Op. at 67.  And a guilty plea is not valid if, for example, the defendant is misinformed of the elements of the offense or there is no factual basis for the plea.  The court found both defects in this case.

*** Finally, for those interested in Rehaif and convictions under 18 U.S.C. § 922(g):

3. Though the court held the MDLEA’s requirement that a boat be “subject to the jurisdiction of the United States” is simply an element of the offense that, if found lacking, does not divest a court of subject-matter jurisdiction, the court reaffirmed the rule that it is a prerequisite to jurisdiction that “the indictment alleges an offense under U.S. criminal statutes.”  Op. at 25.  In Rehaif v. United States, 139 S. Ct. 2191 (2019), the Supreme Court held it is an element of an offense under § 922(g) that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Id. at 2200.  Thus, indictments that do not allege such knowledge — i.e., all § 922(g) indictments returned before Rehaif was decided — do not “allege an offense” under § 922(g).  Jurisdiction is lacking in such cases, and lack of jurisdiction requires dismissal “at any stage in the litigation, even after trial and the entry of judgment.”  Op. at 20.

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