United States District Court, W.D. Missouri, Western Division
ORDER ADOPTING IN PART AND MODIFYING IN PART
MAGISTRATE'S REPORT AND RECOMMENDATION
ROSEANN A. KETCHMARK, JUDGE,
the Court are three motions to dismiss filed on January 22,
2019, by Defendant Luis Alfredo Villegas-Rosa:
(1) the Renewed Motion to Dismiss Count Sixteen or Seventeen
of the Superseding Indictment for Violation of the Double
Jeopardy Clause and/or on Multiplicity Grounds (Doc. 226)
(the “first motion”),
(2) the Motion to Dismiss Portion of Count Sixteen and
Seventeen that Alleges Count One (RICO Conspiracy) is a
Predicate Crime of Violence for Purposes of 18 U.S.C. §
924(c) and 924(j) (Doc. 227) (the “second
(3) the Motion to Dismiss Counts Fifteen, Sixteen, Seventeen,
Thirty-Four and Portion of Count One (Murder-Related Overt
Acts) of Superseding Indictment on Double Jeopardy Grounds
(Doc. 228) (the “third motion”).
March 11, 2019, United States Magistrate Judge John T.
Maughmer issued the Report and Recommendation
(“R&R”) on these motions. (Doc. 244.)
Defendant filed objections to the R&R as to its ruling on
the first and third motion to dismiss (Docs. 250, 251); the
Government filed a response to Defendant's objections
(Doc. 252) as well as a supplemental opposition (Doc. 270);
and Defendant filed additional responses (Docs. 271, 272). No
objections were filed to the R&R regarding the second
(Doc. 227) motion to dismiss.
The Second Motion (Doc. 227)
Court first addresses the R&R with respect to its ruling
on the second motion to dismiss (Doc. 227), to which no
objections were filed. There, Defendant challenges the
superseding indictment for its use of Count One (RICO
conspiracy) as a predicate crime of violence under 18 U.S.C.
§§ 924(c) and 924(j) as charged in Counts Sixteen
and Seventeen. Judge Maughmer recommended that the Court
defer its ruling on the second motion to dismiss pending the
Supreme Court's decision in United States v.
Davis, 903 F.3d 483 (5th Cir. 2018), cert.
granted, 2019 U.S. LEXIS 5, 2019 WL 98544 (Jan. 4,
2019). However, Davis was issued June 24, 2019,
making the second motion to dismiss ripe for disposition.
According to § 924(c)(3), a crime of violence is
“an 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
(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.
(A) of this provision is known as the “elements”
clause; subsection (B) is known as the “residual”
clause. United States v. Davis, No. 18-431, 2019
U.S. LEXIS 4210, at *8 (June 24, 2019). The Supreme Court in
Davis struck down the residual clause as
unconstitutionally vague. Id. at *37. Defendant
argues, and the Government does not contend otherwise, that
RICO conspiracy does not satisfy the requirements under the
“elements” clause. (Docs. 227 at 3-5; 235 at 4.)
Since Davis was decided, the Government has
indicated in a supplemental opposition that it will no longer
contend that RICO conspiracy is a predicate “crime of
violence” for Counts Sixteen and Seventeen. (Doc. 270
at 2.) In light of the events since Judge Maughmer issued his
R&R, namely, the Davis decision and the
Government's concession, the Court modifies the R&R
and will grant Defendant's second motion.
The First and Third Motions (Docs. 226 and 228)
the objected-to portions of the R&R, “[a] district
judge must consider de novo any objection to a magistrate
judge's recommendation.” Fed. R. Crim. P. 59(b)(3).
After an independent, de novo review of the record, including
the applicable law, and the record (Docs. 226, 228, 235, 244,
250, 251, ...