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United States v. Rachal

United States District Court, D. Massachusetts

December 7, 2016

UNITED STATES OF AMERICA, Government,
v.
JOSEPH G. RACHAL, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge.

         Defendant 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 denied.

         I. Background

         This 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.

         Police 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 bank.

         In 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.

         Rachal 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.

         II. Motion to Dismiss Count II

         A. Legal Standard

         When 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).

         Defendant 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 that

(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.

         Subpart 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).

         The 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 ...


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