Brito v. United States

Purpose of the order

The court ordered Enrique Brito and Earl Pierce, the movants in separate proceedings, to submit supplemental letter briefs concerning their motions to vacate. The United States is the respondent in those proceedings and the government in the related criminal case. The order did not grant or deny either motion.

Issues identified for briefing

The court asked whether the Court of Appeals for the Second Circuit’s decision in United States v. Pastore, including the decision issued after rehearing, controls whether attempted murder under New York law is a “crime of violence” under the elements clause of 18 U.S.C. § 924(c). The elements clause generally asks whether an offense requires the use, attempted use, or threatened use of physical force.

The court also requested briefing on whether aiding and abetting attempted murder qualifies as a crime of violence; whether earlier Second Circuit precedent remains controlling; whether related cases are pending before the Second Circuit or the Supreme Court; and whether the modified categorical approach affects the aiding-and-abetting question for Brito or Pierce. That approach is a method courts sometimes use to examine which version of an offense formed the basis of a conviction.

The parties were further directed to address whether aiding and abetting assault with a dangerous weapon under New York law qualifies as a crime of violence under § 924(c), whether the plain-error doctrine applies to the motions, and whether any other issue presented by the motions must be decided.

Deadlines and disposition

The defendants’ submissions were due December 1, 2023, and the government’s response was due January 9, 2024. Judge Castel’s order was a briefing order only: it identified questions for further briefing and did not resolve the motions to vacate or decide whether the offenses qualify as crimes of violence.