Ayyad v. United States

Background

The order addresses nearly identical motions under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. The movants were convicted of multiple felony counts related to the 1993 World Trade Center bombing, including two convictions under 18 U.S.C. § 924(c). That statute imposes additional penalties when a firearm is used or carried during a “crime of violence.”

The two relevant predicate offenses were assaulting a federal official under 18 U.S.C. § 111, identified as Count Nine, and conspiracy to destroy buildings under 18 U.S.C. § 371, identified as Count Ten. The court had previously stayed the motions while constitutional challenges to the definition of “crime of violence” were resolved.

Legal developments and arguments

The Supreme Court held in United States v. Davis that § 924(c)(3)(B), the provision sometimes called the “risk-of-force” clause, was unconstitutionally vague. The Second Circuit then vacated a conviction based on that clause in a case involving conspiracy to commit Hobbs Act robbery.

The government argued that the Count Nine convictions were based on 18 U.S.C. § 111(b), and that an offense under that subsection qualifies as a crime of violence under § 924(c)(3)(A), the “elements clause.” The court agreed substantially with the government’s position. Ayyad, Ajaj, and Salameh did not dispute in their reply that they had been convicted under § 111(b). They instead raised a new argument based on the jury instructions: they contended that the instructions allowed the jury to find the substantive federal-officer-assault offense based on their participation in the conspiracy charged in Count One. They argued that conspiracy is not a crime of violence and that Count Nine therefore could not stand under either § 924(c)(3)(A) or § 924(c)(3)(B).

The court stated that an argument raised for the first time in a reply brief generally is not a proper basis for granting relief. It noted that, although the movants repeated the general argument that the predicate offense was not a crime of violence, their reply asserted new grounds for that argument.

Rulings

The government consented to setting aside the Count Ten convictions in light of Davis and the Second Circuit decision. The court granted all the movants’ motions with respect to Count Ten and stated that it would enter amended judgments reflecting that result.

The court denied Ismoil’s motion with respect to his Count Nine conviction. The court deferred its decision on Ayyad’s, Ajaj’s, and Salameh’s Count Nine motions. It directed the government to respond by March 20, 2020, and allowed those three movants to file a joint reply within 30 days after the government filed its response. Judge Lewis A. Kaplan signed the order.