Opinion
No. 3:17-cr-00130
05-20-2022
UNITED STATES of America v. James Wesley FRAZIER, William Boylston, Jason Meyerholz
Kathryn Risinger, Matthew P. Mattis, J. Christopher Suedekum, Assistant US Attorneys, U.S. Attorney's Office, Nashville, TN, John Ross Glover, Assistant US Attorney, Anderson & Reynolds, PLC, Nashville, TN, Robert Steven Tully, Assistant US Attorney, Department of Justice-Organized Crime and Racketeering Section, Washington, DC, for United States of America. Stephanie H. Gore, Michael E. Terry, Terry & Gore, Nashville, TN, for James Wesley Frazier. Kimberly S. Hodde, Hodde & Associates, Nashville, TN, Vakessha Hood-Schneider, Franklin, TN, for William Boylston. Benjamin H. Perry, Nashville, TN, John Holdridge, Athens, GA, for Jason Meyerholz.
Kathryn Risinger, Matthew P. Mattis, J. Christopher Suedekum, Assistant US Attorneys, U.S. Attorney's Office, Nashville, TN, John Ross Glover, Assistant US Attorney, Anderson & Reynolds, PLC, Nashville, TN, Robert Steven Tully, Assistant US Attorney, Department of Justice-Organized Crime and Racketeering Section, Washington, DC, for United States of America.
Stephanie H. Gore, Michael E. Terry, Terry & Gore, Nashville, TN, for James Wesley Frazier.
Kimberly S. Hodde, Hodde & Associates, Nashville, TN, Vakessha Hood-Schneider, Franklin, TN, for William Boylston.
Benjamin H. Perry, Nashville, TN, John Holdridge, Athens, GA, for Jason Meyerholz.
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Pending before the Court in this case scheduled for trial beginning June 1, 2022 is Defendant James Wesley Frazier's Motion to Dismiss Counts Nine and Ten (Doc. No. 1922), and Defendants William Boylston and Jason Meyerholz's Joint Motion to Dismiss Count Fifty-Eight of the Third Superseding Indictment (Doc. No. 1920). All three Counts allege the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Specifically, the crimes of violence alleged in Counts Nine and Ten are Kidnapping, Kidnapping in Aid of Racketeering, and Murder in Aid of Racketeering. In Count Fifty-Eight, the crimes of violence alleged are again Kidnapping and Kidnapping in Aid of Racketeering, but also Assault With a Dangerous Weapon in Aid of Racketeering. The basis for both motions is that, pursuant to United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) and its holding that the residual clause found in § 924(c)(3)(B) was unconstitutional, kidnapping is not categorically a crime of violence. After all, under the kidnapping statute, one who "inveigles [or] decoys" another can be found guilty of that crime, and neither method necessarily suggests violence. See, 18 U.S.C. § 1201(a) (defining kidnapping as including "whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person").
In response to both motions, the Government concedes that "kidnapping can no longer serve as a predicate offense for a violation of [ 18 U.S.C. §§] 924(c) or 924(j), and also agrees [to] not rely on ... kidnapping in aid of racketeering as a predicate offense for such crimes." (Doc. No. 1950 at 1). That leaves the alleged crimes of violence of Murder in Aid of Racketeering (Counts Nine and Ten) and Assault With a Dangerous Weapon in Aid or Racketeering (Count Fifty-Eight).
As for the murder in aid of racketeering allegations, many courts have found this to be categorically a crime of violence. See Moore v. United States, No. 16-3715-PR, 2021 WL 5264270, at *2 (2d Cir. Nov. 12, 2021) ("VICAR intentional murder constitutes a "crime of violence" for purposes of 18 U.S.C. § 924(c)(3)(A)."); Moz-Aguilar v. United States, No. CV 21-9633 (SRC), 2022 WL 73514, at *3 (D.N.J. Jan. 7, 2022) (stating that post-Davis, VICAR murder "clearly remains a crime of violence under the elements clause of § 924(c)(3)"); United States v. Davis, No. 4:18-CR-00011, 2019 WL 3307235, at *3 (W.D. Va. July 23, 2019) (stating that under "federal, generic definition of the crime ... VICAR murder and VICAR attempted murder are crimes of violence under the elements clause of § 924(c)(3)(A)"); Umaña v. United States, 229 F. Supp. 3d 388, 392 (W.D.N.C. 2017) ("[T]he Court concludes that a VICAR murder is a crime of violence under § 924(c) ’s force clause[.]"). This includes Judge Aleta A. Trauger of this Court. See Hall v. United States, No. 3:20-CV-00646, 2021 WL 119638, at *10 (M.D. Tenn. Jan. 13, 2021) ("This court agrees with those courts finding that first degree murder constitutes a crime of violence for purposes of the force clause of § 924(c)(3), even assuming, without deciding, that Tennessee's definition of first degree murder is the relevant definition of the offense and that the categorical approach requires the court to determine whether murder perpetrated by starvation employs the requisite degree of ‘force.’ "). It also includes Judge William L. Campbell, Jr. of this Court. See, Williamson v. United States, No. 3:16-CV-00075, 2021 WL 1516226, at *8 (M.D. Tenn. Apr. 16, 2021) (canvassing the law on the issue and concluding that defendant's "argument that murder in aid of racketeering is not a ‘crime of violence’ for purposes of Section 924(c) is without merit[.]"). Frazier cites no cases to the contrary and does not substantively address the issue of whether murder in aid or racketeering or otherwise is a crime of violence. The same holds true for assault with a dangerous weapon in aid of racketeering as alleged in Count Fifty-Eight. Indeed, the Sixth Circuit has so held. See, Manners v. United States, 947 F.3d 377, 382 (6th Cir. 2020) (finding that assault with a dangerous weapon in aid of racketeering under § 1959(a)(3) categorically involves the use, attempted use, or threatened use of force capable of causing physical pain or injury to another person); United States v. Frazier, 790 F. App'x 790, 791 (6th Cir.), cert. denied, ––– U.S. ––––, 141 S. Ct. 314, 208 L. Ed. 2d 62 (2020) (following Manners and rejecting defendant request that his § 924(c) conviction be reversed because § 1959(a)(3) was not a "crime of violence" under the elements clause). Other court's have followed suit for a number of different reasons. See United States v. Nixon, No. CR 15-20020, 2022 WL 452448, at *2 (E.D. Mich. Feb. 14, 2022) ("[A]ssault with a dangerous weapon in aid of racketeering is a crime of violence under the ‘elements’ clause of 18 U.S.C. § 924(c)(3)(A), which Davis left intact."); Rodney v. United States, No. 11-CR-00303-3 (NGG), 2019 WL 2571150, at *4 (E.D.N.Y. June 20, 2019) ("Brandishing and using a gun during an assault in aid of racketeering necessarily involves the use of force that is capable of causing physical pain or injury to another person. This is because ‘use, attempted use, or threatened use of physical force,’ 18 U.S.C. § 924(c)(3), involves the use of ‘violent force’–that is force capable of causing physical pain or injury to another.").
Although Manners is controlling authority, surprisingly it is not cited or discussed by Boylston or Meyerholz, nor do they acknowledge that the generic, federal elements of assault with a dangerous weapon necessarily include as an element the use of physical force. Their concern is that Count Fifty-Eight references Count Fifty-Five (a standalone Assault with a Dangerous Weapon in Aid of Racketeering charge) that, in turn, references Sections 39-13-101 & 2 of the Tennessee Code. Those statutes defining assault and aggravated assault under state law permit a conviction based on recklessness and thus would not necessarily be a crime of violence post-Davis.
The only solution, as Defendants would have it, is not dismissal of Count Fifty-Eight. Instead, and as the Government notes, the jury instructions in this case can be reworded to "set forth the elements of assault with a dangerous weapon in aid of racketeering, using the generic federal definition for that offense" and, "to the extent that references are made in the instructions to Tennessee assault offenses, ... the subsections referenced to the jury should be limited to Tenn. Code Ann. § 39-13-102(a)(1)," which "specifically criminalizes ‘intentionally or knowingly’ committing an assault that causes serious bodily injury or involves the use or display of a deadly weapon." (Doc. No. 1950 at 13).
In finding that dismissal of none of the Counts covered by the pending motions is warranted, the Court has considered Frazier's argument that striking language from those Counts will result in an improper amendment of the Indictment and violate his Fifth Amendment rights. The Court disagrees.
"The Fifth Amendment guarantees that an accused be tried only on those offenses presented in an indictment and returned by a grand jury." United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998). Generally, "an indictment is sufficient if it charges an offense, contains the elements of that offense, and fairly informs the defendant of the charge against him." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). At the same time, it is well-established that after an indictment has been returned, its charge may not be broadened except by amendment by the grand jury itself. Stirone v. United States, 361 U.S. 212, 217-18, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In other words, "[t]here is a per se rule prohibiting a judge from amending the terms of an indictment," United States v. Moore, 129 F.3d 873, 877 (6th Cir. 1997), and this "occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after a grand jury has passed upon them." United States v. Cusmano, 659 F.2d 714, 717 (6th Cir. 1981). An impermissible amendment can be constructive, such as where the jury instructions or the evidence at trial "so modify essential elements of an offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." Manning, 142 F.3d at 339 (citation omitted).
"The purposes underlying the rule against amendments and constructive amendments include notice to the defendant of the charges he will face at trial [and] notice to the court so that it may determine if the alleged facts are sufficient in law to support a conviction, prevention of further prosecution for the same offense." United States v. Beeler, 587 F.2d 340 (6th Cir. 1978). Also of "paramount importance" is "the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant's guilt or innocence." Id. (citation omitted).
None of these concerns are implicated here. In addition to being charged with Kidnapping and Kidnapping in Aid of Racketeering in Counts Nine and Ten, Frazier was charged with Murder in Aid of Racketeering. Similarly, in Count Fifty-Eight, Meyerholz and Boylston are charged with Kidnapping and Kidnapping in Aid of Racketeering, as well as Assault With a Dangerous Weapon in Aid of Racketeering. That is, neither the murder charge nor assault charges are new and both were presented to the grand jury. At most, the Indictment has been narrowed and this is not improper. Compare United States v. Chilingirian, 280 F.3d 704, 711 (6th Cir. 2002) ("[T]he constitutional rights of an accused are violated when a modification at trial acts to broaden the charge contained in an indictment.") with United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012) ("[C]onstructive amendment only applies to the broadening, rather than the narrowing, of indictments").
That the predicate acts are listed in the conjunctive ("and") does not change the outcome because "[i]t is settled law that an offense may be charged conjunctively in an indictment where a statute denounces the offense disjunctively [and] the government may prove and the trial judge may instruct in the disjunctive form used in the statute." United States v. McAuliffe, 490 F.3d 526, 534 (6th Cir. 2007) (citation omitted); accord United States v. Pirosko, 787 F.3d 358, 368 (6th Cir. 2015). Id. at 342 (citation omitted). Furthermore, it is not uncommon for a grand jury to return an indictment alleging multiple crimes of violence in a single Section 924(c) count, but those are treated as a single offense, no matter how many predicate acts a defendant is found to have committed. United States v. Vichitvongsa, 819 F.3d 260, 266-70 (6th Cir. 2016).
Accordingly, Frazier's Motion to Dismiss Counts Nine and Ten (Doc. No. 1922) is DENIED. Likewise, the Joint Motion to Dismiss Count Fifty-Eight filed by Boylston and Meyerholz (Doc. No. 1920) is DENIED . The Indictment presented to the jury will be REDACTED to remove the references to "Kidnapping" and "Kidnapping in Aid of Racketeering" in each of those Counts. Additionally, the jury instructions will be tailored in such a way that Defendant Meyerholz and Boylston cannot be convicted on Count Fifty-Eight based upon "reckless" assault as provided for under Tennessee law.
IT IS SO ORDERED.