Opinion
No. CR-18-8389-PCT-JJT
11-08-2019
United States of America, Plaintiff, v. Jeremiah Cleveland, Defendant.
ORDER
Defendant moved to dismiss Count II of the Indictment against him in this matter (Doc. 27), Possession of a Firearm in a Crime of Violence, in violation of 18 U.S.C. § 924(c)(3)(A). Defendant's Possession of a Firearm in a Crime of Violence is predicated on his First-Degree Murder charge (Doc. 3). The government filed a Response to the motion (Doc. 29), and Defendant then filed a Reply in support of the motion (Doc. 31). For the following reasons, the Court will deny the motion.
Defendant's argument depends chiefly on his reading of United States v. Begay, 934 F.3d 1033 (9th Cir. 2019). In Begay, the Ninth Circuit held that second-degree murder is not a "crime of violence" under § 924(c)(3)(A). Id. at 1038. Defendant, who is charged with first-degree murder, argues that "there is no difference in the analysis of whether second-degree murder is a crime of violence and the analysis of whether first-degree murder is a crime of violence." (Doc. 27. at pp. 2-3.) This is because the elements of first-degree and second-degree murder both require proof of "malice aforethought." (Doc. 27. at pp. 3-4.) According to the Ninth Circuit in Begay, because the malice aforethought element for second-degree murder can be proven with reckless conduct, it is categorically not a crime of violence, which requires the intentional use of force. Begay, 934 F.3d at 1039. From Begay, Defendant argues that first-degree murder is not a crime of violence because it also requires proof of malice aforethought. (Doc. 27. at pp. 2-4.)
The Ninth Circuit has foreclosed Plaintiff's argument. In United States v. Arthur, 750 Fed. App'x 540, 541 (9th Cir. 2018), the Ninth Circuit held that "first-degree murder is categorically a crime of violence" under § 924(c)(3)(A). Id. at 543. Arthur directly contradicts Defendant's contention. The Court thus will deny his motion on that basis.
Even if Arthur were not the law, Defendant's argument still would fail. Though Defendant is correct that the only difference between first- and second-degree murder is that the former requires a premeditation element, he is incorrect about the effect of this difference. This is because unlike second-degree murder, the premeditation element forecloses the possibility of proving first-degree murder with merely reckless conduct. Premeditation requires that a killer has "form[ed] the intent to kill," and has "been fully conscious of the intent and to have considered the killing." Ninth Cir. Model Criminal Jury Instructions 8.107; United States v. Free, 841 F.2d 321, 325 (9th Cir 1988). So, first-degree murder requires "the intent to kill," and it is this intentionality requirement which fits the crime squarely into the crime of violence definition in § 924(c)(3)(A). Ninth Cir. Model Criminal Jury Instructions 8.107; Free, 841 F.2d at 325. Although both first- and second-degree murder have a malice aforethought element, first-degree murder's malice aforethought element cannot be satisfied with merely reckless conduct because of the additional premeditation element. Consequently, Defendant's reliance on Begay is misplaced. The Court will deny Defendant's motion. ... ... ... ... ...
IT IS ORDERED denying Defendant's Motion to Dismiss Count II of the Indictment (Doc. 27).
Dated this 8th day of November, 2019.
/s/_________
Honorable John J. Tuchi
United States District Judge