Speed v. United States

Background

A jury convicted Robert Speed of seven counts, including substantive racketeering under the Racketeer Influenced and Corrupt Organizations Act, RICO conspiracy, possession of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c), unlawful firearm possession, and offenses involving stolen goods. The court sentenced him to 420 months in prison, including a consecutive 84-month sentence on the firearm count.

At trial, the court instructed the jury that both the substantive RICO charge in Count One and the RICO-conspiracy charge in Count Two could serve as the crime-of-violence predicate for the firearm charge in Count Three. The jury did not identify which predicate, or predicates, supported its Count Three verdict.

Speed later filed a motion under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence. He relied on Johnson v. United States and United States v. Davis. Davis held that the residual clause of § 924(c)—the provision asking whether an offense, by its nature, creates a substantial risk that physical force may be used—is unconstitutionally vague. The court first determined that Speed had not procedurally defaulted his claim because the legal basis for it was not reasonably available when he took his direct appeal, and because he showed potential prejudice from an invalid conviction.

RICO Conspiracy as a Predicate

The court agreed with Speed that RICO conspiracy could no longer qualify as a crime of violence under § 924(c). After Davis, a predicate offense must satisfy the elements clause, which covers a felony requiring the use, attempted use, or threatened use of physical force against a person or property. RICO conspiracy qualifies only under the invalid residual clause, according to the court.

The court rejected Speed’s argument that the absence of a special jury finding required the court to assume that Count Three rested only on the weaker predicate, RICO conspiracy. It explained that a § 924(c) conviction may remain valid when one possible predicate is invalid but another possible predicate is valid. Reviewing the trial record, the court found that the Count Three conviction rested on both Count One and Count Two. The record included evidence of multiple robberies and the jury’s findings that several racketeering acts had been proved.

Substantive RICO as a Predicate

The court then examined whether substantive RICO in Count One was a crime of violence. Under Second Circuit precedent, a substantive RICO conviction can serve as a § 924(c) predicate when at least two of the racketeering acts proved at trial are crimes of violence.

The jury found several robbery-based racketeering acts proved. Those robberies were charged under New York Penal Law § 160.10, which requires “forcibly” stealing property, including under circumstances involving an accomplice, physical injury, or the display of what appears to be a firearm. The court held that New York robbery categorically qualifies as a crime of violence under the elements clause because forcible stealing requires the use or threatened use of physical force.

The court acknowledged that conspiracy to commit robbery is no longer a crime of violence under § 924(c). But it held that this did not invalidate Count Three because the jury also found multiple substantive robberies proved, and those robberies supplied a valid predicate for the substantive RICO conviction. The court therefore concluded that Count One remained a valid predicate for the firearm conviction.

Disposition

Judge Castel denied Speed’s motion to vacate, set aside, or correct his conviction and sentence under § 2255. The clerk was directed to terminate the motion.