United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
Joseph Rachal ("Rachal" or "defendant")
has been indicted for bank robbery, 18 U.S.C. §§
2113(a) and (d), using a firearm during and in relation to a
crime of violence, 18 U.S.C. § 924(c)(1)(A), and being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1).
Currently before the Court is Rachal's motion to dismiss
Count II, using a firearm during and in relation to a crime
of violence. For the reasons that follow, that motion will be
case arises from an alleged bank robbery that occurred on or
about November 19, 2015. On that date, a masked person went
into a branch of the TD bank located at 391 Market Street in
Brighton, Massachusetts. That person purportedly told two
tellers to give him money at gun point, placed bills
amounting to approximately $2, 397 that the tellers handed
him in a bag and left the bank.
officers rushed to the area around the bank. After a brief
foot chase, officers apprehended Rachal about a block away
from the bank. They searched his bag and found a black Glock
nine millimeter firearm and ammunition as well as a face
mask, gloves and currency matching the amount taken from the
February, 2016, a grand jury indicted Rachal. He subsequently
moved to suppress the evidence from the seizure and ensuing
search that occurred on November 19, 2015. This Court denied
the motion to suppress.
now moves to dismiss Count II of the indictment, possession
of a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A). That motion is
the subject of this memorandum and order.
Motion to Dismiss Count II
considering a motion to dismiss in a criminal case, a court
accepts the factual allegations in the indictment as true.
Boyce Motor Lines v. United
States, 342 U.S. 337, 343 n.16 (1952). Such a motion is
properly directed only to the question of the validity of the
indictment on its face. United States v.
Marbelt, 129 F.Supp.2d 49, 56 (D. Mass. 2000). An
indictment is ripe for dismissal if the facts demonstrate
that, as a matter of law, the prosecution will not be able to
prove each of the elements of the charged offense. United
States v. Huet, 665 F.3d 588, 596-97
(3d Cir. 2012).
moves to dismiss Count II which charges him with using a
firearm "during and relation to any crime of
violence." 18 U.S.C. § 924(c)(1)(A). Section
924(c)(3) defines "crime of violence" as a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another, or (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 is typically referred to as the "force" clause,
while Subpart B is referred to as the "residual"
clause. Although the Supreme Court of the United States has
found that the similarly worded residual clause in 18 U.S.C.
§ 924(e), related to whether a perpetrator is deemed to
be an armed career criminal, is unconstitutionally vague,
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), it has not yet addressed whether the so-called
residual clause in § 924(c)(3) is also
unconstitutionally vague. United States v. Armour,
840 F.3d 904, 907-08 (7th Cir. 2016).
crime charged in Count II requires a predicate crime of
violence. The predicate crime of violence in this case is
Count I of the indictment which alleges that defendant
violated the federal bank robbery statute. 18 U.S.C. §
2113(a) and (d). That statute prohibits taking money from a
bank by "force and violence, or by intimidation."
18 U.S.C. § 2113(a). If an individual assaults another
person or puts a life at risk by using "a dangerous
weapon or device" in the ...